Domesday Book and Beyond: Three Essays in the Early History of England (part 3 of 4)

Domesday Book and Beyond: Three Essays in the Early History of England (part 3 of 4)

[722] Rot. Hund. ii. 361.Return to passage

[723] D. B. i. 189.Return to passage

[724] Rental of Gloucester, ed. W. H. Stevenson: Gloucester, 1890, p. x.Return to passage

[725] There are many examples in Kemble's Codex.Return to passage

[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.Return to passage

[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.Return to passage

[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.Return to passage

[729] Alfred, 40; Ine, 45.Return to passage

[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.Return to passage

[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.'Return to passage

[732] Schmid, App. XII; Leg. Henr. c. 16.Return to passage

[733] Fleta, p. 66; see also 13 Ric. II. stat. 1. cap. 3.Return to passage

[734] Edmund, II. 2.Return to passage

[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.'Return to passage

[736] Æthelstan, II. 20.Return to passage

[737] K. 1334 (vi. p. 195): a contract made at Exeter before Earl Godwin and all the shire.Return to passage

[738] Edgar, III. 5; Cnut, II. 18.Return to passage

[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.Return to passage

[740] Green, Conquest of England, 189-207.Return to passage

[741] For instance, K. iii. pp. 5, 50.Return to passage

[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.'Return to passage

[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.'Return to passage

[744] See our index under Burghal Hidage. Mr W. H. Stevenson's valuable aid in the identification of these burgs is gratefully acknowledged.Return to passage

[745] D. B. i. 154.Return to passage

[746] D. B. i. 262 b.Return to passage

[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.Return to passage

[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.Return to passage

[749] A.-S. Chron. ann. 894.Return to passage

[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?Return to passage

[751] K. 1144 (v. 280). Other cases: K. 663 (Chichester), 673 (Winchester), 705 (Warwick), 724 (Warwick), 746 (Oxford), 1235 (Winchester).Return to passage

[752] K. 765-6, 805.Return to passage

[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.Return to passage

[754] A.-S. Chron. ann. 994.Return to passage

[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.Return to passage

[756] Gross, Gild Merchant, i. 183, 189.Return to passage

[757] Gross, op. cit. ii. 37.Return to passage

[758] Hist. Eng. Law, i. 257.Return to passage

[759] A.-S. Chron. ann. 1097: 'Eac manege sciran þe mid weorce to Lundenne belumpon ...' Thorpe thought good to substitute scipan for sciran.Return to passage

[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.Return to passage

[761] Sohm, Die Entstehung des deutschen Städtewesens: Leipzig, 1890.Return to passage

[762] Ellis, Introduction, i. 248-253.Return to passage

[763] D. B. i. 56 b.Return to passage

[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.Return to passage

[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.Return to passage

[766] Edgar, IV. 3-6. We should expect rather 36 than 33, and xxxvi might easily become xxxiii.Return to passage

[767] K. 280 (ii. 63), 316 (ii. 118).Return to passage

[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.Return to passage

[769] Æthelstan, II. 14.Return to passage

[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.Return to passage

[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.Return to passage

[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.'Return to passage

[773] D. B. i. 143.Return to passage

[774] D. B. i. 230.Return to passage

[775] Cutts, Colchester, 65; Round in The Antiquary, vol. vi. (1882) p. 5.Return to passage

[776] D. B. ii. 106-7. See Round, op. cit., p. 252.Return to passage

[777] Hist. Eng. Law, i. 629.Return to passage

[778] D. B. i. 252.Return to passage

[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.Return to passage

[780] D. B. i. 336.Return to passage

[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.Return to passage

[782] D. B. i. 280.Return to passage

[783] D. B. i. 336 b.Return to passage

[784] D. B. ii. 117.Return to passage

[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.Return to passage

[786] D. B. i. 100.Return to passage

[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.Return to passage

[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.Return to passage

[789] Gross, Gild Merchant, ii. 37.Return to passage

[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.Return to passage

[791] D. B. i. 154.Return to passage

[792] See above, p. 179.Return to passage

[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.Return to passage

[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.Return to passage

[795] Hist. Eng. Law, i. 635.Return to passage

[796] D. B. i. 219.Return to passage

[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.Return to passage

[798] As to the round sums cast on the boroughs, see Round in Domesday Studies, i. 117 ff.; also Round, Feudal England, 156.Return to passage

[799] This may not have been the case in East Anglia.Return to passage

[800] D. B. i. 252.Return to passage

[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.Return to passage

[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.Return to passage

[803] See the entry touching Colchester, above, p. 201, note 787.Return to passage

[804] D. B. i. 1.Return to passage

[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.Return to passage

[806] D. B. i. 56 b.Return to passage

[807] D. B. i. 179.Return to passage

[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.Return to passage

[809] D. B. i. 336.Return to passage

[810] Hist. Eng. Law, i. 631.Return to passage

[811] Green, Town Life, vol. i. ch. xi.Return to passage

[812] D. B. i. 189.Return to passage

[813] D. B. i. 336 b.Return to passage

[814] D. B. i. 336 b.Return to passage

[815] D. B. i. 298.Return to passage

[816] D. B. i. 262 b.Return to passage

[817] R. H. i. 354-6.Return to passage

[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.Return to passage

[819] Gross, Gild Merchant, ii. 114 ff.; Hist. Eng. Law, i. 642.Return to passage

[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.'Return to passage

[821] D. B. i. 108 b.Return to passage

[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.Return to passage

[823] D. B. i. 26 b, 27.Return to passage

[824] D. B. i. 4 b.Return to passage

[825] D. B. i. 4 b. See also, 10 b.Return to passage

[826] D. B. i. 12.Return to passage

[827] D. B. i. 345, 283 b. It has been said that Leofric gave Newark to the see.Return to passage

[828] Dodsworth's Yorkshire Notes, ed. R. Holmes (reprinted from Yorkshire Archaeological Journal), p. 126.Return to passage

[829] D. B. i. 316 b. The estate is ingeldable and therefore looks like an ancient possession of the king.Return to passage

[830] D. B. 337 b: 'Toftes sochemanorum teignorum.' Some commentators have seen here 'sokemen thegns'; but the other interpretation seems far more probable.Return to passage

[831] Had these towns been described in Great Domesday, they would probably have been definitely placed outside the _Terra Regis_.Return to passage

[832] D. B. ii. 311, 312, 385.Return to passage

[833] D. B. ii. 319 b.Return to passage

[834] D. B. ii. 389 b: 'semper unum mercatum modo 43 burgenses.' For Sudbury, see D. B. ii. 286 b; for Beccles, 369 b.Return to passage

[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.Return to passage

[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.'Return to passage

[837] D. B. ii. 5 b.Return to passage

[838] D. B. ii. 104.Return to passage

[839] D. B. i. 163.Return to passage

[840] D. B. i. 75.Return to passage

[841] D. B. i. 100, 108 b.Return to passage

[842] D. B. i. 86 b.Return to passage

[843] D. B. i. 87.Return to passage

[844] See above, p. 188.Return to passage

[845] D. B. 38 b, 44.Return to passage

[846] D. B. 64 b.Return to passage

[847] D. B. 66.Return to passage

[848] The burgesses belonging to Ramsbury are really at Cricklade: D. B. i. 66.Return to passage

[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.Return to passage

[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).'Return to passage

[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.Return to passage

[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.Return to passage

[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.Return to passage

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.Return to passage

[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.Return to passage

[856] Meitzen, Siedelung und Agrarwesen der Germanen, especially ii. 120 ff.Return to passage

[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.Return to passage

§ 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.Return to passage

[859] D. B. i. 173 b; K. 131 (i. 158); B. i. 311.Return to passage

[860] D. B. i. 127; K. 230 (i. 297); B. i. 558.Return to passage

[861] Hist. Eccl. iv. 13 (ed. Plummer, i. 232).Return to passage

[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.Return to passage

[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.Return to passage

[864] K. 12 (i. 16); B. i. 69; H. & S. 129; Plummer, Bede, ii. 247. The charter itself is open to grave suspicion.Return to passage

[865] C. S. Taylor, The Pre-Domesday Hide of Gloucestershire.Return to passage

[866] E. p. 4; B. M. Facsim. iv. 1.Return to passage

[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.'Return to passage

[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.Return to passage

[869] An accusative absolute.Return to passage

[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.Return to passage

[871] K. Nos. 12, 16, 32, 36, 48, 52, 56, 67, etc.Return to passage

[872] K. 131 (i. 158).Return to passage

[873] K. 1.Return to passage

[874] K. Nos. 27, 35, 77, 79, 999, 1006, 1007.Return to passage

[875] K. 35 (i. 39); E. 13; B. M. Facs. i. 2.Return to passage

[876] K. 52 (i. 59); E. 16; B. M. Facs. i. 3.Return to passage

[877] E. 4; B. M. Facs. iv. 1.Return to passage

[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.'Return to passage

[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.'Return to passage

[880] Hist. Eccl. iv. c. 13 (ed. Plummer, i. 232).Return to passage

[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.'Return to passage

[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.'Return to passage

[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.'Return to passage

[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.'Return to passage

[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'?Return to passage

[886] Ine, 70, § 1.Return to passage

[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.Return to passage

[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.Return to passage

[889] Kemble, Saxons, i. 294-8; ii. 58.Return to passage

[890] Karl Lehmann, Abhandlungen zur Germanischen Rechtsgeschichte, 1888; Liber Census Daniae, ed. O. Nielsen, 1879.Return to passage

[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.Return to passage

[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.Return to passage

[893] Kemble, Saxons ii. 73-6.Return to passage

[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.'Return to passage

[895] See above, p. 55.Return to passage

[896] Rectitudines c. 1 (Schmid, App. III.).Return to passage

[897] See above, p. 169.Return to passage

[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.Return to passage

[899] Epistola ad Ecgbertum (ed. Plummer, i. 405).Return to passage

[900] K. 131 (i. 158).Return to passage

[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].'Return to passage

[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.Return to passage

[903] Bede (ed. Plummer, i. 415): 'ipsas quoque litteras privilegiorum suorum.'Return to passage

§ 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.Return to passage

[905] Edw. I. 2.Return to passage

[906] Schmid, p. 575.Return to passage

[907] K. 281 (ii. 64); B. M. Facs. ii. 33.Return to passage

[908] K. 317 (ii. 120); T. 480; B. ii. 195.Return to passage

[909] K. 260 (ii. 28); B. ii. 33; B. M. Facs. ii. 30.Return to passage

[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.Return to passage

[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.Return to passage

[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.'Return to passage

[913] Stubbs, Const. Hist. i. 212.Return to passage

[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.Return to passage

[915] K. 1 (i. 1); A.D. 604. Æthelbert for Rochester.Return to passage

[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.Return to passage

[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.Return to passage

[918] K. 157 (i. 189), Offa of Mercia uses this eschatocol, but in a Kentish gift.Return to passage

[919] K. 1006-7 (v. 47-8); B. i. 256-7.Return to passage

[920] K. 79 (i. 95).Return to passage

[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.'Return to passage

[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.Return to passage

[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.Return to passage

[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.Return to passage

[925] Bresslau, Urkundenlehre, i. 697.Return to passage

[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.Return to passage

[927] See William's charter for Fécamp, Neustria Pia, p. 224.Return to passage

[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.'Return to passage

[929] K. 113 (i. 137).Return to passage

[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.Return to passage

[931] K. 1312 (vi. 172).Return to passage

[932] The violated books are in Chron. Abingd. i. 314, 317, 334.Return to passage

[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.Return to passage

§ 3. Sake and Soke.

[Importance of seignorial justice.]

Of all the phenomena of feudalism none seems more essential than seignorial justice. In times gone by English lawyers and historians have been apt to treat it lightly and to concentrate their attention on military tenure. For them 'the introduction of the military tenures' has been 'the establishment of the feudal system.' But when compared with seignorial justice, military tenure is a superficial matter, one out of many effects rather than a deep-seated cause. Seignorial justice is a deep-seated cause of many effects, a principle which when once introduced is capable of transfiguring a nation. Of the origin and antiquity of this principle, however, some even of our most illustrious historians have spoken with great hesitation and therefore we shall spend some time in examining the texts which reveal what can be known about it, admitting once for all that they leave much room for differences of opinion.

[Theory of the modern origin of seignorial justice.]

Since the doctrine to which we have come would trace seignorial justice back to a remote time, we shall do well to state at the outset an extreme version of the opposite doctrine, a version which has been elaborately set forth in a learned and spirited essay[934].--On the eve of the battle of Hastings a seignorial court was still a new thing in England. It was a Norman precursor of the Norman Conquest. England owes it to Edward the Confessor, who was 'half-Norman by birth and wholly Norman by education and sympathies.' It came to us with 'a new theory of constitutional law.' From the reign of no older king can any evidence be produced of the existence--at any rate of the legalized existence--of private courts. True, there are charters that give to the holders of great estates the profits of jurisdiction; but a grant of the profits of jurisdiction is one thing, jurisdiction itself is another. True, that one man might have soke over another, but this does not mean that he had jurisdiction; at the most it means that he was entitled to the profits of justice, to wites, to fines and amercements. 'No instance can be found before the Norman times in which sócn means jurisdiction. Sócn had a technical meaning of its own which is always rigorously observed. The idea of jurisdiction, on the other hand, was expressed by an equally technical word, the meaning of which is also rigorously observed. This is sacu, a word which has strangely vanished from our legal vocabulary, but is still preserved, even in its technical sense, by the German sache[935].'

[Sake and soke in the Norman age.]

Now it will not be disputed that in Domesday Book and the Leges Henrici this distinction is obliterated. Soke means jurisdiction and 'sake and soke' is but a pleonastic phrase, which means no more than soke[936]. Nor is it disputable that on the vigil of the Conquest a great deal of jurisdiction was wielded by the lords. Not a few of the 'hundreds' were in private hands, and, apart from hundredal jurisdiction, a lord might have and often had sake and soke over his own lands. It is not denied that Edward the Confessor had freely granted to churches and other lords large rights of justice,--not merely rights to the profits of jurisdiction, but jurisdiction itself. The question is whether what he did was new.

[The Confessor's writs.]

For one moment longer we may dwell on the indisputable fact that he dealt out jurisdictional rights with a lavish hand. This we gather, not so much from his Latin land-books, as from English writs in which he announces to the bishop, earl, sheriff and great men of a county that he has given land in that county to some church 'with sake and soke and toll and team'; sometimes he adds 'with infangennethef, grithbrice, foresteal, hamsocn, flymena-fyrmth,' and so forth. Sometimes the donees are to have these rights in all their own lands. Sometimes he gives them the hundredal jurisdiction over lands that are not their own. Thus to St. Benet of Ramsey he gives soken over all the men in a hundred and a half--over all the men who are 'moot-worthy, fyrd-worthy, and fold-worthy,' whosesoever men they may be: that is to say (as we understand it) he gives a jurisdiction over all the free men of the district, the men who attend the moots, who attend the host and who are not compelled by any soca faldae to send their sheep to a seignorial fold, and this although those men be bound to St. Benet neither by tenure nor by personal commendation[937]. Again, he concedes that the donee's tenants shall be quit of shires and hundreds[938]. Again, he gives the favoured church taxational power: whenever the king takes a geld, be it army-geld, or ship-geld, the monks may impose a similar tax upon the township and keep the proceeds to their own use[939]. In short, it seems not too much to say that any delegation and appropriation of justice of which our Norman kings were guilty had an ample warrant in the practice of St. Edward.

[Cnut's practice.]

Now the theory which would make him an innovator in this matter receives a rude shock from a writ of Cnut[940]. The king announces that the Archbishop of Canterbury is to be worthy throughout his lands of his sake and soke and grithbrice, hamsocn, foresteal, infangennethef and flymena-fyrmth. Until the genuineness of this writ, which does not stand quite alone[941], be disproved, the charge that has been brought against Edward fails. He was but following in the steps of the great Dane, though it may be that he rushed forward where his predecessor had trod cautiously.

[Cnut's law.]

Having seen what Cnut could do upon occasion, we turn to the famous passage in his dooms which declares what 'rights the king has over all men[942].' In Wessex and Mercia (in the Danelaw the list is somewhat different) he has hamsocn, foresteal, flymena-fyrmth and fyrd-wite 'unless he will honour a man yet further and grant him this worship.' Now if we had not before us his writ for the archbishop, we might perhaps argue that this law merely decreed that the profits of certain pleas were not to be covered by the 'farms' paid to the king by the sheriffs and other national officers. But in the writ we see that Cnut allows to the archbishop just the excepted rights, just that 'worship' which men are not to have as a general rule. Nor surely can we say that what is conceded is, not jurisdiction itself, but merely the profits of jurisdiction. The archbishop is to have sake as well as soke, and those who have contended for the strictest interpretation of royal grants have not contended that the former of these words can mean anything but 'causes,' 'pleas,' 'jurisdiction.' Therefore when it is interpreted by the aid of this writ, Cnut's law seems to imply that private jurisdiction is a common thing. The king is already compelled to protest that there are certain pleas of the crown that are not covered by vague and general words.

[The book and the writ.]

Now express grants of sake and soke first become apparent to us in documents of a certain class, a class that we do not get before the last years of the tenth century. It is necessary therefore that we should make a short digression into the region of 'diplomatics.' The instruments of the Confessor's reign, and we may add of the Norman reigns, which we loosely call royal charters or royal land-books divide themselves somewhat easily into two main classes, which we will call respectively (1) charters and (2) writs. These names are not very happy, still they are the best that occur to us. If we have regard to the form of the instrument, the distinction is evident. The charter is with rare exceptions in Latin. It begins with an invocation of the Triune God or perhaps with a sacred monogram. On the other hand, there is no address to mortal men; there is no salutation. There follow a pious arenga setting forth how good a thing it is to make gifts, how desirable it is, since men are very wicked, that transactions should be put into writing. Then the king states that he gives, or has given, or will give--the use of the future tense is not uncommon--certain land to a certain person. Then comes a clause which we shall hereafter call 'the clause of immunity':--the land is to be free from certain burdens. Then comes the anathema or damnatory clause, threatening all breakers of the charter with excommunication here and torment hereafter. Then in the charters of the time before the Conquest the boundaries of the land are described in English. Then comes the sign of the cross touched by the king's hand and the crosses of the witan or nobles who 'attest' or 'attest and consent to' the grant. In the writ all is otherwise. In the Confessor's day it is usually, in the Norman reigns it is sometimes, an English document. It begins, not with an invocation, but with a salutation;--the king greets his subjects or some class of his subjects: King Edward greets 'Herman bishop and Harold earl and all my thegns in Dorset,' or 'Leofwin bishop and Edwin earl and all my thegns in Staffordshire':--and then he tells them something. He tells them that he has granted lands or liberties to a certain person. There follows a command or a threat--'I command and firmly enjoin that none shall disturb the grantee,' 'I will not suffer that any man wrong the grantee.' The boundaries are not described. There is seldom any curse. The king makes no cross. If any witnesses are mentioned, they are few and they do not make crosses.

[Differences between book and writ.]

Now these formal differences correspond more or less exactly to a substantial difference. As every modern lawyer knows, a written document may stand in one of two relations to a legal transaction. On the one hand it may itself be the transaction: that is to say, the act of signing, or of signing and delivering, the document may be the act by which certain rights are created or transferred. On the other hand, the instrument may be but evidence of the transaction. Perhaps the law may say that of such a transaction it will receive no evidence save a document written and signed; perhaps it may say that the testimony of documents is not to be contradicted by word of mouth; but still the document is only evidence, though it may be incontrovertible evidence, of the transaction; the transaction may have been complete before the document was signed[943]. This material distinction is likely to express itself in points of form; for instance, such a phrase as 'I hereby give' is natural in the one case; such a phrase as 'Know all men by this writing that I have given' is appropriate in the other. Instruments of both kinds were well enough known in the Frankish kingdom; their history has been traced back into the history of Roman conveyancing[944]. It would be out of place were we here to discuss the question whether the Anglo-Saxon land-book was a dispositive or merely an evidential document; suffice it to say that with rare exceptions the instruments that are of earlier date than the Confessor's reign are in form charters and not writs. On the other hand, the documents of the Angevin kings which treat of gifts of lands and liberties, though we call them charters, are in form (if we adopt the classification here made) not charters but writs. In form they are evidential rather than dispositive; they are addressed to certain persons--all the king's lieges or a class of the lieges--bidding them take notice that the king has done something, has given lands, and then adding some command or some threat. This command or threat makes them more than evidential documents; the Sciatis me dedisse is followed by a Quare volo et firmiter praecipio; it is not for no purpose that the king informs his officers or his subjects of his having made a gift; still in form they are letters, open letters, 'letters patent,' and the points of difference between the Angevin charter and the Angevin 'letters patent' (strictly and properly so called) are few, technical and unimportant when compared with the points of difference which mark off these two classes of documents from the ancient land-book[945]. In short before the end of the twelfth century, the writ-form or letter-form with its salutation, its 'Know ye,' its air of conveying information coupled with commands, has entirely supplanted the true charter-form with its dispositive words and its air of not merely witnessing, but actually being, a gift of land.

[Anglo-Saxon writs.]

But to represent this as a contrast between English instruments and Norman or French instruments would be a mistake. In the first place, we have a few documents in writ-form that are older than the days of the Norman-hearted Edward. As already said, we have a writ from Cnut and it has all those features of Edward's writs which have been considered distinctively foreign. We have another writ from the same king. The king addresses Archbishop Lyfing, Abbot Ælfmær, Æthelric the shireman 'and all my thegns twelvehinde and twihinde.' He tells them that he has confirmed the archbishop's liberties and threatens with the pains of hell any one who infringes them[946]. We have a writ from Æthelred the Unready, and a remarkable writ it is. He addresses Ælfric the ealdorman, Wulfmær and Æthelweard and all the thegns in Hampshire and tells them how he has confirmed the liberties of bishop Ælfheah and how large tracts of land are to be reckoned as but one hide--an early example of 'beneficial hidation[947].' Secondly, the solemn charter with its invocation, its pious harangue, its dispositive words, its religious sanction, its numerous crosses, its crowd of attesting and consenting witnesses, was in use in Normandy before and after the conquest of England. Thirdly, the Norman kings of England used it upon occasion. Much they did by writ. The vast tracts of land that they had at their disposal would naturally favour the conciser form; but some of the religious houses thought it well to obtain genuine land-books of the old English, and (we must add) of the old Frankish type. The king's seal was not good enough for them; they would have the king's cross and the crosses of his wife, sons, prelates and barons. The ultimately complete victory of what we have called the writ-form over what we have called the charter-form may perhaps be rightly described as a result of the Conquest, an outcome, that is, of the strong monarchy founded by William of Normandy and consolidated by Henry of Anjou, but it can not be rightly described as the victory of a French form over an English form; and a very similar change was taking place in the chancery of the French kings[948].

[Sake and soke appear when writs appear.]

We may say then that the appearance of words clearly and indisputably conceding jurisdictional rights is contemporaneous with the appearance of a new class of diplomata, namely royal writs as contrasted with royal charters or land-books. We may add that it is contemporaneous with the appearance of royal diplomata couched in the vernacular language. This may well lead us to two speculations. In the first place, is it not very possible that many ancient writs have been lost? The writ was a far less solemn instrument than the land-book, and it is by no means certain that the writs of the Confessor were intended to serve as title-deeds or to come to the custody of those for whose benefit they were issued. King Edward greets the bishop of London, Earl Harold, the sheriff and all the thegns of Middlesex and tells them how he has given land to St. Peter and the monks of Westminster, and how he wills that they enjoy their sake and soke. The original document is presented to the bishop, the earl, or the sheriff (to all of them perhaps as they sit in their shire moot) and we can not be certain that after this the monks ought to have that document in their possession, that it ought not to be kept by the sheriff, or perhaps returned to the king with an indorsement expressive of obedience. Many hundred writs must King William have issued in favour of his barons--this is plain from Domesday Book--and what would we not give for a dozen of them? Secondly, it is well worth notice that 'sake and soke' begin to appear so soon as royal diplomata written in English become common, and when we observe the formulas which enshrine these words we find some difficulty in believing that such formulas are new or foreign. Let us listen to one.

saca and socne toll and team griðbrice and hamsocne and foresteal and alle oðre gerihte inne tid and ut of tide binnan burh and butan burh on stræte and of stræte.

Surely this alliteration and this rude rhythm tell us that the clause has long been fashioning itself in the minds and mouths of the people and is no piece of a new-fangled 'chancery-style[949].' And one other remark about language will occur to us. In many respects the law Latin of the middle ages went on becoming a better and better language until, in the thirteenth century, it became a very good, useful and accurate form of speech. But it gained this excellence by frankly renouncing all attempts after classicality, all thought of the golden or the silver age, and by freely borrowing from English whatever words it wanted and making them Latin by a suffix. The Latin of the Anglo-Saxon land-books is for all practical purposes a far worse language, just because it strives to be far better. It wanted to be good Latin, and even at times good Greek. The scribe of the ninth or tenth century would have been shocked by such words as tainus, dreinus, smalemannus, sochemannus which enabled his successors to say precisely what they wanted. He gives us provincia instead of scira, satrapes instead of aldermanni, and we read of tributum and census when we would much rather have read of geldum and gablum. It was out of the question that he should be guilty of such barbarisms as saca et soca. If he is to speak to us of these things, he will do so in some phrase which he thinks would not have disgraced a Roman orator--in a phrase, that is, which will not really fit his thought.

[Traditional evidence of sake and soke.]

The traditions, the legends, current in later times, can not be altogether neglected. The prelates of the thirteenth century often asserted that some of their franchises, and in particular their hundred courts, had been given to their predecessors in an extremely remote age. Thus the bishop of Salisbury claimed the hundred of Ramsbury in Wiltshire by grant of King Offa of Mercia[950]; the Abbot of Ramsey claimed the hundred of Clackclose in Norfolk by grant of King Edgar[951]. On such claims we can lay but very little stress, for if the church had held its 'liberties' from before the Conquest, the exact date at which it had acquired them was of little importance and their origin would easily become the sport of guess-work and myth. But occasionally we can say that there must in all probability be some truth in the tale. Such is the case with the famous hundred of Oswaldslaw in Worcestershire. When the Domesday survey was made this hundred belonged to the church of Worcester. Worcestershire was deemed to comprise twelve hundreds and Oswaldslaw counted for three of them[952]. Oswaldslaw contained 300 hides, and to all seeming the whole shire contained 1200 hides or thereabouts. Even in the thirteenth century a certain tripleness seems to be displayed by this hundred; the bishop holds his hundred court in three different places, namely, outside the city of Worcester, at Dryhurst and at Wimborntree[953]. Now the story current in St. Mary's convent was that this triple hundred of Oswaldslaw received its name from Oswald, the saintly bishop who ruled the church of Worcester from 960 to 992. A charter was produced, perhaps the most celebrated of all land-books, that Altitonantis Dei largiflua clementia, which, after many centuries, was to prove the King of England's dominion over the narrow seas[954]. According to this charter Edgar, Oswald's patron, threw together three old hundreds, Cuthbertslaw, Wolfhereslaw, and Wimborntree to form a domain for the bishop and his monks[955]. Could we accept the would-be charter as genuine, could we even accept it as a true copy of a genuine book (and this we can hardly do)[956], there would be an end of all controversy as to the existence of seignorial justice in the year 964, for undoubtedly it contains words which confer jurisdiction[957]. Upon these we will not rely: the fact remains that in Domesday Book there appears this hundred of Oswaldslaw, that it is treated as a triple hundred, as three hundreds, that the bishop has jurisdiction over it, that the sheriff has no rights within it, that it looks like a very artificial aggregate of land, for pieces of it lie intermixed with other hundreds and pieces of it lie surrounded by Gloucestershire. In 1086 the church of Worcester had to all appearance just those rights which the Altitonantis professed to grant to her; already they were associated with the name of Oswald; already they were regarded as ancient privileges. 'Saint Mary of Worcester has a hundred called Oswaldslaw, in which lie 300 hides, from which the bishop of the said church, by a constitution of ancient times, has the profits of all sokes and all the customs which belong thereto for his own board and for the king's service and his own, so that no sheriff can make any claim for any plea or for any other cause:--this the whole county witnesses[958].' Surely the whole county would not have spoken thus of some newfangled device of the half-Norman Edward. Such a case as this, so great a matter as the utter exclusion of the sheriff from one quarter of the shire, we shall hardly attempt to explain by hypothetical usurpations. These liberties were granted by some king or other. If they were granted by the Confessor, why was not a charter of the Confessor produced? Why instead was a charter of Edgar produced, perhaps rewritten and revised, perhaps concocted? The easiest answer to this question seems to be that, whatever may be the truth about this detail or that, the Altitonantis tells a story that in the main is true. The diplomatist's scepticism should in this and other instances be held in check by the reflexion that kings and sheriffs did not permit themselves to be cheated wholesale out of valuable rights, when the true state of the facts must have been patent to hundreds of men, patent to all the men of Oswaldslaw and to 'the whole county' of Worcester[959].

[Criticism of the earlier books.]

We may now turn to the genuine books of an earlier time and patiently examine their words. It is well known that an Anglo-Saxon land-book proceeding from the king very commonly, though not always, contains a clause of immunity. Sometimes a grant of immunity is the essence of the book; the land in question already belongs to a church, and the bishop or abbot now succeeds in getting it set free from burdens to which it has hitherto been subject. What is now granted to him is 'freedom,' 'liberty,' 'freóls'; the book is a freóls-bóc[960]; it may be that he is willing to pay money, to give land, to promise prayers in return for this franchise, this libertas[961]. Thus, for example, King Ceolwulf of Mercia grants a libertas to the Bishop of Worcester, freeing all his land from the burden of feeding the king's horses, and in consideration of this grant the bishop gives to the king five hides of land for four lives and agrees that prayers shall be said for him every Sunday[962].

[The clause of immunity.]

Now in an ordinary case the clause of immunity will first contain some general words declaring the land to be free of burdens in general, and then some exceptive words declaring that it is not to be free from certain specified burdens[963]. Both parts of the clause demand our attention. The burdens from which the land is to be free are described by a large phrase. Usually both a substantive and an adjective are employed for the purpose; they are to be freed ab omni terrenae servitutis iugo--saecularibus negotiis--mundiali obstaculo--mundialibus causis--saecularibus curis--mundialibus coangustiis--cunctis laboribus vitae mortalium. The adjectives are remarkable, for they seem to suggest a contrast. The land is freed from all earthly, worldly, secular, temporal services. Does this not mean that it is devoted to services that are heavenly, sacred, spiritual[964]? True, that in course of time we may find this same formula used when the king is giving land, not to a church, but to one of his thegns; but still in its origin the land-book is ecclesiastical; 'book-right' is the right of the church, ius ecclesiasticum[965], and we may well believe that the phraseology of the books, which in substance remains unaltered from century to century, was primarily adapted to pious gifts. It is by no means improbable that in the middle of the eighth century Æthelbald of Mercia by a general decree conceded to all the churches of his kingdom just that freedom from all burdens, save the trinoda necessitas, that was usually granted by the clause of immunity contained in the land-books, and we can hardly say with certainty that half a century before this time Wihtræd had not granted to all the churches of Kent a yet larger measure of liberty, a liberty which absolved them even from the trinoda necessitas[966]. Turning from the adjectives to the substantives that are used, we find them to be wide and indefinite words; the lands are to be free from all worldly services, burdens, troubles, annoyances, affairs, business, causes, matters and things. Sometimes a more definite word is added such as tributum, vectigal, census, and clearly one main object of the clause is to declare that the land is to pay nothing to the king or his officers; it is to be free of rent and taxes, scotfree and gafolfree[967]. Occasionally particular mention is made of a duty of entertaining the king, his court, his officers, his huntsmen, dogs and horses, also of a duty of entertaining his messengers and forwarding them on their way[968]. Thus, for example, Taunton, which belonged to the bishop of Winchester, had been bound to provide one night's entertainment for the king and nine nights' entertainment for his falconers and to support eight dogs and a dog-ward, to carry with horses and carts to Curry and to Williton whatever the king might need, and to conduct wayfarers to the neighbouring royal vills. To obtain immunity from these burdens the bishop had to give the king sixty hides of land[969].

[Discussion of the words of immunity.]

No doubt it is a sound canon of criticism that, when in a grant precise are followed by vague words, the former should be taken to explain, and, it may be, to restrain the latter. If, for example, land be freed 'from taxes and all other secular burdens,' we may well urge that the 'other secular burdens' which the writer has in his mind are burdens akin to taxes. And of course it is fair to say that in our days a grant of private justice would be an extremely different thing from a grant of freedom from fiscal dues. But what, we must ask, does this freedom from fiscal dues really mean when it is granted by an Anglo-Saxon land-book? When the monks or canons obtain a charter freeing this territory from all tributum and census, from all pastiones and so forth, is it intended that the occupiers of the soil shall have the benefit of this grant? Not so. The religious have been stipulating for themselves and not for their men. The land has been freed from service to the king in order that it may serve the church[970]; the church will take what the king has hitherto taken or it will take an equivalent. In a writ of Edward the Confessor this appears very plainly. Whenever men pay a geld to the king, be it an army-geld or a ship-geld, the men of St. Edmund are to pay a like geld to the abbot and the monks[971]. Probably this principle has been at work all along. The king has had no mind to free the manentes, casati, tributarii of the church from any tributum or vectigal. What has hitherto been paid to him, or some equivalent for it, will now go to the treasury of the church. Thus, even within the purely fiscal region, we see that the object of the immunity is to give the church a grip on those who dwell upon the land. But we must read the clause to its end.

[The trinoda necessitas.]

As is well known, it usually proceeds to except certain burdens, to declare that the land is not to be free from them. These burdens, three in number, are on a few occasions spoken of as the trinoda necessitas. That term has become common in our own day and is useful. The land is not to be free from the duty of army-service, the duty of repairing strongholds, the duty of repairing bridges. An express exception of this trinoda necessitas out of the general words of immunity is extremely common. Moreover there are charters which speak as though no lands could ever be free from the triple charge[972], and a critic should look with some suspicion upon any would-be land-book which expressly purports to break this broad rule. But besides some books which do expressly purport to free land from the trinoda necessitas[973], we have a considerable number of others which grant immunity in wide terms and make no exception of army-service, bridge-bote or burh-bote[974], and we are hardly entitled to reject them all merely because they do not conform to the general principle[975]. More to our purpose is it to notice that, though a grant of jurisdictional powers would be an extremely different thing from a grant of immunity from army-service, the duty of attending the national or communal courts is extremely like the duty of attending the host, and it would not be extravagant to argue that when the king says 'I free this land from all secular burdens except those of fyrd-fare, burh-bote and bridge-bote,' he says by implication 'I free this land from suit to shires and hundreds.'

[The ángild.]

But yet more important is it to notice that charters of the ninth century frequently except out of the words of immunity not three burdens, but four. In addition to the trinoda necessitas, some fourth matter is mentioned. Its nature is never very fully described, but it is hinted at by the terms ángild, singulare pretium, pretium pro pretio. In connexion with these charters we must read others which exempt the land from 'penal causes,' or wíte-rǽden and others which expressly grant to the donee the 'wites' or certain 'wites' issuing from the land; also we shall have to notice that there are dooms which decree that certain 'wites' are to be paid to the land-lord or land-ríca. Now ángild (singulare pretium) is a technical term in common use[976]. When a crime has been committed--theft is the typical crime which the legislators have ever before their eyes--the ángild is the money compensation that the person who has been wronged is entitled to receive, as contrasted with any wite or fine that is payable to the king. We find, then, a charter saying that certain land--not certain persons, but certain land--is to be free from all secular burdens save the ángild, and in some cases it will be added that the land is to pay nothing, not one farthing, by way of wite, or that nothing is 'to go out to wite[977].' Of the various interpretations that might possibly be put upon such words one may be at once rejected. It is not the intention of the king who makes or of the church which receives the grant that crimes committed on this land shall go unpunished. No lord would wish his territory to be a place where men might murder and steal with impunity. We may be certain then that if a crime be committed, there is to be a wite; but it is not to go outside the land; the lord himself is to have it. But how is the lord to enforce his right to the wite,--must he sue for it in the national or communal courts, or has he a court of his own?

[The right to wites and the right to a court.]

This question is difficult. The ancient charters, however nearly they may go to telling us that the donee will do justice within his territory, never go quite that length. There is, however, a book granted by Cenwulf of Mercia in 816 to the church of Worcester which adds to the clause of immunity these words--'and if a wicked man be three times captured in open crime, let him be delivered up at the king's tún (vicum regalem)[978].' This seems to tell us that only the worst offenders will be delivered up to the royal or national officers and to imply that the bishop may do justice upon all others. Then there are two books in favour of the church of Abingdon, the one granted by Cenwulf in 821, the other by Egbert in 835, which, though their language is very obscure, seem to tell us that if one of the 'men of God' (by which phrase are meant the 'vassals' of the church of Abingdon) be accused of any crime, the overseer of the church may swear away the charge by his own oath, and that, if he dare not swear, he may pay the ángild to the plaintiff and, this done, will have justice over the offender[979]. Another ancient book suggests that the lord of an immunity, when he had to pay the ángild for one of his men, could not be forced to cross the boundary of his land. On that boundary some mixed tribunal would meet consisting partly of his men and partly of outsiders[980]. Then, again, there are the books which either give the lord the furis comprehensio or else exempt his land from the furis comprehensio. Now when a writ of Cnut or Edward the Confessor tells us that a lord is to have infangennethef we do not doubt that he is to have the right which bore that name in later days, the right to hold a court for and to hang thieves who are caught in seisin of the stolen goods, and to the furis comprehensio of the older books we can hardly give another meaning. And the apparent equivalence of the two phrases 'You shall hold this land with thief-catching' and 'You shall hold this land free of thief-catching' illustrates our argument that to exempt land from public or national justice is to create private or seignorial justice[981]. We may see this in later days; a lord who holds land 'free and quit of frankpledge' assumes the right to hold a view of frankpledge, and we can not say that he is wrong in so doing[982].

[The Taunton book.]

Lastly, in a book of fairly good repute we may read of the grand liberties with which in 904 King Edward endowed the Bishop of Winchester's large estate at Taunton--that estate which in subsequent centuries was to become the classical example of colossal manors. 'I have,' says the king, 'granted to Christ that the men of the bishop, noble as well as non-noble, living on the said land shall be worthy of the same right that is enjoyed by those who dwell on the demesnes of the crown, and that jurisdiction in all secular causes shall be exercised to the use of the bishops in the same manner as that in which jurisdiction is exercised in matters pertaining to the king[983].' This is the more important because it suggests, what like enough is true, that the king himself is one of the first of all 'immunists'; his own estates, the ancient demesne of the crown, already stand outside the national system of finance, justice and police[984].

[The immunist and the wite.]

But so careful must we be in drawing inferences from singular instances, so wary of forgeries, that in the end we can not dispense with arguments which rest rather upon probabilities than upon recorded facts. It is conceded that the 'immunist' (it is convenient to borrow a term that French writers have coined) is entitled to many of the fines and forfeitures that arise from offences committed within his territory. Is it, we must ask, probable that any ealdorman or sheriff will be at pains to exact and collect these fines and forfeitures for the immunist's benefit? Now it is true that in later days a few lords enjoyed a comparatively rare franchise known as amerciamenta hominum. When their men were amerced in the king's court the amercements were paid into the exchequer, and then the lord would petition to have them paid out to him[985]. But this was an uncommon and an exalted franchise. As a general rule, the person in whose name a court is held, be he king or lord, gets the profits of the court. No one in the middle ages does justice for nothing, and in the ninth century the days when national officers would be paid by salary were far distant. When the king declares that nothing is to 'go out' of the immunist's lands 'by way of wite,' then to our thinking he declares that, save in exceptional cases, he and his officers will neither meddle nor make with offences that are committed within that territory. Again, though we may reject this charter and that, there can be little doubt that before the end of the tenth century, the territory held by a church sometimes coincided with a jurisdictional district, with a hundred or group of hundreds. When this was so, and the church enjoyed a full immunity, it was almost of necessity the lord of the court as well as the lord of the land. Why should the sheriff hold that court, why should he appoint a bailiff for that hundred, if never thereout could he get one penny for his own or the king's use?

[Justice and jurisdiction.]

We must once more remember that even in the days of full grown feudalism the right to hold a court was after all rather a fiscal than a jurisdictional right. We call it jurisdictional, but still, at least normally, the lord was, neither in his own person, nor yet in the person of his steward, the judge of the court[986]. His right was not in strictness a right ius dicendi, for the suitors made the judgments. When analysed it was a right to preside over a court and to take its profits. Very easy therefore is the transition from a right to 'wites' to such 'jurisdiction' as the feudal lord enjoys. When once it is established that all the fines of a hundred court are to go to a bishop, that no sheriff or bailiff will get anything by going to hold that court, then the court already is 'in the bishop's hands.'

[The Frankish immunity.]

This, however, can not be treated as a merely English question. Parallel to the English fréols-bóc runs the Frankish carta immunitatis, and, if the former has given rise to the question whether it conceded jurisdictional rights, the latter has given rise, not merely to the same question, but to much learned controversy. Now it is highly probable that the English 'immunity' is not independent of the Merovingian 'immunity'; still the terms of the former do not seem to have been copied from those of the latter, and it is a significant fact that two different formulas should be equally open to the blame of not deciding just that most important question which according to our ideas they ought to decide. The Frankish formula is addressed by the king to his subordinates and declares that no public officer (nullus iudex publicus) is to enter the land of the immunist for the purpose of hearing causes, levying freda (which answer to our 'wites'), making distresses or exacting pledges; but, like our English formula, it says no word of any court to be held or any jurisdiction to be exercised by the immunist. It would be impertinent to give here any lengthy account of the various opinions about this matter that have been held by foreign scholars, still more impertinent to pronounce any judgment upon them, but even those writers who seem most inclined to minimize the scope of the immunity are forced to admit that, as a mere matter of fact, the immunist by virtue of his immunity is enabled to hold a court for his territory. That seignorial courts were growing up even in the Merovingian time, that such courts there were even in the sixth century, there seems little or no doubt, even though it be denied that they were the creatures of these clauses of immunity. On the whole, to whichever side of the channel we look, we seem compelled, alike by the words of the charters and by the controversies which they have occasioned, to believe that in the eyes of the kings and the immunists seignorial jurisdiction, that right to hold a court which seems to us so strange a right, was not a matter of the first importance, not worth conceding, not worth denying. Who is to have the profits of justice?--that is a momentous question. But if it be decided that they are to go to the bishop, then the king will have no further care for them:--the bishop may and must get them for himself. As to the 'justiciables,' it may well be that they are very indifferent about the matter, not impossible that the burden of suit will be alleviated if the lord establishes a court of his own, or if an old court passes into his hands[987].

[Seignorial and ecclesiastical jurisdiction.]

One other question should be raised, even if we can find for it no certain answer. Is not seignorial jurisdiction very closely connected at its root with ecclesiastical jurisdiction? Of course in more recent times the two are thoroughly distinct from each other. The bishop, besides being a spiritual judge, will be a feudal lord with many manorial courts and many chartered franchises; but any court that he holds as a lord will have nothing to do with the court that he holds as a bishop. The constitution and procedure of the one will differ at every point from the constitution and procedure of the other. The one belongs to the temporal order and is subject to the king's court, the other belongs to the spiritual order and is in no sense below the royal tribunal. Thus it is when feudal law and canon law have reached their full stature. But even from the twelfth century we may get a hint that the distinction has not always been so sharply marked. We may read how in Henry I.'s day the Bishop of Bath 'with his friends and barons' heard a cause in which Modbert claimed lands that were held by the monks of Bath. The proceedings took place under a royal writ and ought, we should say, to have been in all respects temporal proceedings; but in framing the judgment two bishops, three archdeacons and several 'clerks and chaplains' took the leading part, while the lay tenants of the bishop stood by as witnesses[988]. In this context we must remember that in the twelfth century the clergy were contending that land given to a church in frankalmoin is outside the sphere of secular justice[989], and, while this contention was being urged, it was easily possible that a bishop should hold an amphibious court:--Over the claim that Modbert is making the bishop has jurisdiction, either because the monks are holding the land of him as his tenants, or because that land has been given to God and the saints by an ancient book which denounced the anathema against all who should violate it. Going back yet further, we see, at all events in France, that the claim of the clergy to hold their lands and seignories exempt from all temporal jurisdiction has been intimately connected with the claim of the clergy that they themselves need not answer before a lay tribunal. A learned man has said that the exemption of the clergy from the temporal courts was 'the first step towards the feudalization of justice[990].' If our English documents do not make this plain, if the relations between church and state were more harmonious in England than elsewhere (and because more harmonious therefore more indefinite and to the modern student more perplexing), still we can see that the main idea of the English fréols-bóc is the liberation of a tract of ground from all secular troubles, all temporal burdens, all earthly service. The land is dedicated to God and the saints, or, if it is not dedicated in the strictest sense, it is given for God's sake and the welfare of the donor's soul; it is within the ban of the church. And so the men who sit upon the land of the church of Abingdon, laymen though they be, are homines Dei, the men of God[991]. As such, should they not be subject to the jurisdiction of the church?

[Criminal justice of the Church.]

At this point we may profitably remember that the jurisdiction which in later days appears as the 'criminal jurisdiction' of ecclesiastical tribunals (the jurisdiction which, for example, those tribunals exercise when they chastise a man for incest, fornication or perjury) was but slowly disengaged from the general mass of penal jurisdiction that was wielded by moots in which the bishop occupied a prominent seat. Moreover, the bishop's justice did not escape that fiscal taint which pervaded the whole system of criminal law. As in some cases the king is entitled to a wite, so in others the wite falls to the bishop. For instance, we see traces of a rude concordat, which, when incest or adultery is committed, subjects the woman to the bishop, the man to the king[992]; and then from Domesday Book we learn that in the borough of Lewes the upshot of this partition is that the king will get 8_s._ 4_d._ from the man while the adulteress pays a like sum to the archbishop of Canterbury[993]. And so ecclesiastical jurisdiction becomes a source of income, a matter to be fought for and bargained for. The monks of Battle will claim that within the banlieu of their abbey all the 'forfeitures of Christianity' belong to them and not to the bishop of Chichester[994]. What is more, they will connect their claim to purely temporal justice with their possession of ordeal pits, and here we may see another link between the hundred-moots and the churches[995]. The churches have made money out of the ordeal. Long after the English prelates had been forbidden to hold spiritual pleas in the hundred courts, Alexander III. was compelled to speak sharply to the archbishop of Canterbury touching the conduct of archdeacons who exacted thirty pence from every man or woman who went to the fire or the water for purgation[996].

[Antiquity of seignorial courts.]

No doubt the theory to which we have been led implies that in the eighth or even in the seventh century, there were in England 'immunists' who had jurisdiction within their territories, and further it implies that a royal grant of land in the ninth and tenth centuries generally included, and this as a matter of 'common form,' a grant of jurisdiction. We cannot see either in the history of England or in the history of the Frankish Empire any reason why we should shrink from these conclusions. Further, it must be admitted that if the clause of immunity conveys, or permits the growth of, seignorial jurisdiction, this jurisdiction is of an exalted kind, for no causes are excepted out of it, unless it be by the words about the ángild, and even those words drop out from the charters in course of time. Those words about the ángild imply, to our thinking, that the immunist will have jurisdiction over any dispute which arises between two men of the enfranchised territory, and also that if an action against one of these men be brought by a 'foreigner' in a court outside the precinct, the immunist can obtain 'cognizance' of the action by appearing in that court and paying the ángild. When the words about the ángild disappear, this means that the immunist is obtaining a yet further measure of 'liberty':--whenever one of his men is sued he can 'crave his court' and need not, as a condition for obtaining it, offer to pay what is due to the plaintiff. The highest criminal jurisdiction was probably excepted from the grant. Being a grant of wites, it will not extend to the 'bootless' the 'unemendable' crimes. But Cnut's attempt to save for himself certain pleas of the crown looks to us like the effort of a strong king to recover what his predecessors have been losing[997]. And then Cnut himself and the Confessor,--the latter with reckless liberality--expressly grant to the churches just those very reserved pleas of the crown. The result is that the well endowed immunist of St. Edward's day has jurisdiction as high as that which any palatine earl of after ages enjoyed. No crime, except possibly some direct attack upon the king's person, property or retainers, was too high for him. It is the reconstruction of criminal justice in Henry II.'s time, the new learning of felonies, the introduction of the novel and royal procedure of indictment, that reduce the immunist's powers and leave him with nothing better than an unintelligible list of obsolete words[998]. In this matter of seignorial justice England had little to learn from Normandy. On the contrary, the Norman counts and barons were eager to secure the uncouth phrases which gave to the English immunist his justice, 'haute, moyenne et basse justice.'

[Sidenote: Justice, vassalage and tenure.]

Our next question must be whether in the days before the Conquest a franchise or immunity was the only root of private jurisdiction: in other words, whether any jurisdiction was implied in the mere relation between lord and man or between lord and tenant. This also is a question which will hardly be finally answered if regard be had only to the English documents. For France it is the question whether the senior, as such, has jurisdiction over his vassus, or again, whether he has jurisdiction over his vassus if, as is usually the case in the Carlovingian age, the vassus holds a beneficium given to him by his senior. The English dooms which deal with what we may call the justiciary relationship between lord and man closely resemble in many respects the Frankish capitularies which touch the same subject; both sets of documents seem to evade the simple question that we put to them. But as regards the continent it may here be enough to say that, though there have been many debates, the current of learning seems to have set decidedly in favour of the doctrine that neither in Merovingian nor yet in Carlovingian times had the senior, unless he was an immunist, a jurisdiction over his men. Such a jurisdiction has not been developed when the midnight hides everything from our view. When the morning comes, feudal justice stands revealed, though nowhere perhaps is it governed by that simple principle that ultimately prevailed in England, namely, that any and every lord, no matter his personal rank or the rank of his tenement, has civil justice over his tenants.

[The lord's duty when his man is accused.]

The possibility of debate about this matter is afforded by texts of an earlier age, which at times seem to speak of the lord as 'doing justice' when a charge is brought against any of his men[999]. Our English run parallel with the Frankish texts. The state in its organization of justice and police does not treat the contract between man and lord, between senior and vassus, as a matter of indifference, still less as a danger to society. We must not think of feudalism or vassalism as of something which from the very first is anti-national and anarchic. In its earliest stages it is fostered by the state, by the king, by national law. The state demands that the lordless man of whom no right can be had shall have a lord[1000]. It makes the lord responsible for the appearance of his men in court to answer accusations[1001]. It is not unlikely that the whole system of frankpledge grows out of this requirement. In some instances the state may go further; it may treat the lord, not merely as bound to produce his man, but as responsible for his man's evil deeds. But, at all events, any one who has a charge to make against a lord's man must in the first instance demand justice of the lord. If without making such a demand, making it repeatedly, he brings the charge before the king, he must pay the same fine that the lord would have paid had he been guilty of a default of justice[1002]. 'Of a default of justice' we say and are compelled to say. It is phrases such as this that have occasioned controversy. To an ear attuned to the language of feudalism they seem to imply a seignorial court in which the lord 'does justice' or 'holds full right' to the demandant. But to all appearance they have gradually changed their meaning. Originally a lord 'does right' to the demandant by producing in a public court the man against whom the claim is urged; or he does it by satisfying the claim, and in that case he seems entitled to exact from his man, not merely a sum which will compensate the outlay, but also the 'wite' or fine which in another case would have gone to the king or some national officer. He has thus 'done justice' and may have the usual profit that comes of doing justice. Probably we ought to distinguish between a laxer and a stricter measure of responsibility, between the lord's responsibility for his men in general and his responsibility for such of his men as form his familia, in the language of later days his mainpast; but our texts do not lay much stress upon this distinction, and, as a matter of remote history, the relation between lord and man may grow out of the relation between the head of a household and the members of it[1003].

[Duty of the lord.]

At any rate, in numberless cases the law begins to interpose a third person, namely, the wrong-doer's lord, between the wrong-doer and the wronged: it is to this lord that the claimant should in the first instance address himself. The lord who does his duty by the king and the nation is he who keeps a tight hold on his men, who chooses them carefully, who dismisses them if they are bad subjects, who 'does justice' and 'holds full right' if any of them be accused. Then, on the other hand, he has the right and duty of 'warranting' his men. If, as will often happen, the bond between a lord and his man is complicated with the bond between landlord and tenant, then, as in later days, if the tenant's title be impeached, he will vouch his lord to warranty and the lord will defend the action. But, besides this, within limits that are not well defined, the lord is the man's defensor or tutor[1004]. It is expected of him by morality, if not by law, that he will take upon himself the responsibility for his man's acts if they be not open crimes. He must stand by his men and see them through all trouble[1005].

[The state requires the lord to 'do right.']

For a while the state approves all this. The dangerous person is, not the lord, whose wide lands are some security for his good behaviour, but the lordless man of whom no right can be had. Somehow or another theft must be suppressed. This is the determination of our strongest kings, of our wisest 'witan.' That they are raising up over against the state another power, the power of seignorial justice, they do not see. And, after all, these 'witan' both laymen and clerks are themselves great lords, and the king is the lordliest of them all. Thus the foundation for a feudal jurisdiction is laid. Still between the lord's duty of producing his men and his right to hold a court of and for his men there is to our eyes a great gulf. We have seen above that this gulf had not been bridged even in the Confessor's, even in the Conqueror's day[1006]. Nor to our thinking would it have been bridged but for the creation of 'immunities' upon a grand scale. The first origin of the immunity we have sought in the efforts of the clergy to obtain lands which should be utterly exempt from 'all earthly burdens,' 'all worldly business.' But this effort unites with the stream of tendency that we have now been watching. The state will be grateful to the church if it will 'hold all the men of God to right' and do judgment between them and upon them.

[Sidenote: The land-ríca as immunist.]

There is also a long series of dooms going back as far as Æthelstan's reign which give certain fines and forfeitures to one who is described as the land-hláford or the land-ríca. Remarkable they are, for they seem to assume that wherever a crime is committed there will be forthcoming some-one who will answer to the title 'the land-lord' or 'the territorial magnate.' In some sense or another they presuppose that there is Nulle terre sans seigneur. But who is this 'landlord'? According to our thinking, he is the lord of the hundred or else the lord who has a charter of immunity comprehending the land in question, and, if there be no person answering to this description, then he is the king. In the first place, in certain dooms relating to London we are told that, when a thief is caught and slain, his property is to be divided into two parts, of which his wife takes one, while the other is divided between the king and 'the association' (perhaps we may say 'the gild') which was engaged in the pursuit and capture; 'but if it be book-land or bishop's-land, the landlord takes half with the association in common[1007].' This seems to mean that there will be a lord to share in the proceeds of the forfeiture if, but only if, the scene of the capture be land that is within an immunity. It is assumed, not without warrant in the land-books, that the man who has book-land always, or almost always, enjoys an immunity, while as to the bishop's-land, whether the bishop be holding it in demesne or have granted it out to his thegns, that no doubt will be protected by an ample charter. So again, in another law 'the lord' receives the thief's wer 'if he [the lord] is worthy of his wite[1008]': that is to say, the lord receives it if he is in enjoyment of an immunity which confers upon him a right to 'wites.' Then again, in several cases we find that the land-lord or land-ríca shares the proceeds of a fine with the hundred or wapentake[1009]. This, as we think, points to the fact that the hundreds and wapentakes are passing into private hands. These laws are severe laws against criminals. They urge all men to the pursuit of the flying thief and they hold out a reward to those who are active in this duty. The men of the hundred are to have half the thief's property, while the lord (who in many cases will be the lord of the hundred) is to have the other half. He is to have no more, even though his charter may seem to give him more. So again, in certain cases an accused person must find security that he will stand a trial, and the gage is to be given 'half to the land-ríca, half to the wapentake[1010].' This land-ríca is the lord of the wapentake. In another instance the gage must be given half to the land-ríca and half to the king's port-reeve[1011]. Then there are cases in which the 'land-lord' is to take possession of cattle that have been irregularly acquired and are presumably stolen, and is to preserve them until their true owner shall make his appearance[1012]. These provisions, which seem the foundation of the 'franchise of waif and stray,' suggest that the 'land-lord' is the president of the court into which the owner must go when he wishes to prove his title; were this not so, the king's reeve would be the person who would have the custody of the unclaimed beasts. Certainly our explanation of these passages assumes that a hundred is often in private hands and it assumes that, when this is not the case, then the king is regarded as the lord of the hundred. But in so doing it merely assumes that the state of things revealed by Domesday Book is about a century old. When in that record we read that the soke of four and a half hundreds in Oxfordshire 'belongs to' the royal manor of Bensington, that the soke of two hundreds 'belongs to' the royal manor of Headington, that the soke of other two hundreds 'belongs to' the royal manor of Bampton, we see that the king is the lord, the proprietor, of those hundreds which have no other lord[1013]. From the laws now before us we infer that this is no very new arrangement. But of course it is possible that those laws have divers cases in view. It may be that within the hundred there is an immunity, a privileged township or manor, and that a thief is caught there. Who is to have the profits which arise from the crime and condemnation? The answer is: Half shall go to the hundred, half to the land-ríca, that is to say, half goes to the doomsmen, or perhaps to the lord, of the hundred court, half to the immunist. The lord under the general words of his charter might perchance claim the whole; but, in order that all the hundredors may have an interest in the pursuit of thieves, it is otherwise decreed. But where is justice to be done, in the hundred court or in the court of the immunist? That is a question of secondary importance to which our laws do not address themselves. Very probably justice will be done in the hundred court, or again it is not impossible that a mixed tribunal consisting partly of the men of 'the franchise,' partly of the men of 'the geldable' will meet upon the boundary of the immunist's land[1014]. Our main point must be that the land-lord or land-ríca of these laws is an immunist, or is the king, who, where there is no immunity, occupies the position of an immunist.

[The immunist's rights over free men.]

We see too that the immunist's rights extend over free men and over free landowners. If a man is guilty of heathenry he must, if he be a king's thegn, pay ten half-marks, half to Christ and half to the king, but if he be another 'landowning man' then he pays six half-marks, half to Christ and half to the land-ríca[1015]. The landowner normally has a land-lord above him. We see also that the lord is made liable for the payment of dues which are ultimately exigible from those who are dwelling within his territory. 'If a king's thegn or other land-ríca makes default in paying Peter's pence, he must pay ten half-marks, half to Christ and half to the king; if a "towns-man" makes a similar default, the land-ríca must pay the penny and take an ox from the defaulter, and if the land-ríca neglects to do this, then Christ and the king shall receive the full bót of twelve ores[1016].' Such is the manner in which the lord's power is consolidated. He begins to stand between his free men and the state, between his free men and the church.

[Delegation of justiciary rights.]

Another consequence of the argument in which we have been engaged is that, at least a century before the Conquest, the great immunists were granting immunities to their dependants. From this consequence we shall not flinch. Bishop Oswald, for example, was an immunist on a splendid scale, and when he loaned land to a knight and said that the land was to be 'free from all secular service' save the trinoda necessitas, he loaned not merely land, but immunity and jurisdiction. On one occasion, adopting a formula that has lately come before us, he said that nothing was to go out of the land by way of wite[1017]. By this we understand that he gave to his thegn any wites which might thereafter be incurred by the inhabitants of the manses which were comprised in the loan, and further that he gave him the right to hold a court. Domesday Book requires us to believe that such transactions had not been uncommon[1018].

[Number of immunists.]

Will our attempt to explain the land-books create too many holders of sake and soke? We do not think so, for we do not think that the number of land-books should be indefinitely multiplied by our imaginations. If we look in Domesday Book at the counties which lie south of the Thames, we shall indeed see that the total amount of land of which the churches are tenants in chief is very large. But the number of these landowning churches is small. When we have named seven episcopal and a dozen abbatial minsters we have disposed of by far the greater bulk of the church lands in this district, and these minsters are as a general rule just those which have transmitted to us in cartularies and chronicles the story of their acquisitions. To churches that were destroyed by the Danes we may allot some charters; but we should have no warrant for the supposition that royal diplomata have perished by the hundred and left no trace behind. In the shires of York, Lincoln, Nottingham, Derby we might allow sake and soke to every English prelate who appears as a tenant in chief and yet not raise to twelve[1019] the number of the ecclesiastical immunists who had lands in this wide region. As to the lay holders of sake and soke, they were not very many though they held broad lands; also they belonged for the more part to an exalted class[1020]. However, here as elsewhere we must admit that every attempted explanation discloses new problems.

NOTE.

The Ángild Clause.

As we have said above, (p. 274), there are certain charters in which the clause of immunity makes mention of the ángild (pretium pro pretio, singulare pretium). We will here collect the obscure texts in which this difficult term occurs.

First, however, we will call attention to a passage in Domesday's account of Worcestershire (D. B. i. 175 b), which throws some light on the matter. Westminster Abbey holds 200 hides and Pershore Abbey holds 100 hides. 'The county says that the church of Pershore is entitled to church-scot from all the 300 hides [its own 100 and Westminster's 200], to wit, from every hide on which a free man dwells one load of corn on St. Martin's day, (if he has more hides than one, they are free), and if that day be infringed [i.e. if payment be not made thereon], he who has kept back the corn must pay elevenfold, but first must pay what is due [i.e. he altogether pays twelve loads--"God's property and the church's twelve-fold" (Æthelb. 1.)]; and the Abbot of Pershore will have a wite (forisfactura) from his own 100 hides, such as he ought to have from his own land; but from the other 200 hides he will have the multifold payment of the corn that is due (habet summam et persolutionem) and the Abbot of Westminster has the wite (forisfacturam).' For solvere et persolvere, see Laws of William (Select Charters) c. 5; for solta et persolta, see Dial. de Scac. ii. 10.

If then, a Westminster tenant fails to pay church-scot to Pershore, he must make bót (very ample bót) to Pershore, but his wite will go to his own lord; nothing is to 'go out to wite' from the Westminster land. We will now turn to the land-books. We take them to be saying in effect that in such a case as that put by Domesday the grantee of the immunity is to have his man's wite, though the restitutory bót will go to another.

(i) A.D. 767. Uhtred of the Hwiccas. K. 117 (i. 144); B. i. 286: 'interdicimus ut si aliquis in hac praenominatam terram aliquid foras furaverit alicui solvere aliquid nisi specialiter pretium pro pretio ad terminum ad poenam nihil foras.' We should place a stop after terminum. Then the last clause means 'nothing shall go out to wite.' The mention of the terminus suggests a payment at the boundary of the immunist's land.

(ii) [Questionable]. A.D. 799. Cenwulf. K. 176 (i. 213); B. i. 411: 'de partibus vero et de causis singulare solvere pretium et nihil aliud de hac terra.'

(iii) A.D. 799-802. Pilheard. K. 116 (i. 142); B. i. 284: 'ut ab omnium fiscalium redituum operum onerumque seu etiam popularium conciliorum vindictis nisi tantum pretium pro pretio liberae sint in perpetuum.'

(iv) A.D. 814. Cenwulf of Mercia for the church of Worcester. K. 206 (i. 259); B. i. 489: 'exceptis his, expeditione et pontis constructione, et singulare pretium foras, nihilque ad poenam resolvat.'

(v) Cenwulf of Mercia for the church of Worcester. K. 215 (i. 271); B. i. 507: 'exceptis his, arcis et pontis constructione et expeditione et singulare pretium foras adversum aliud; ad poenam vero neque quadrantem minutam foras resolvat.'

(vi) A.D. 822. Ceolwulf of Mercia for Archbishop Wilfred. K. 216 (i. 272); B. i. 508: 'liberata permaneat in aefum nisi is quattuor causis quae nunc nominabo, expeditione contra paganos ostes, et pontes constructione sui [=seu] arcis munitione vel destructione in eodem gente, et singulare pretium foras reddat, secundum ritam gentes illius, et tamen nullam penam foras alicui persolvat.'

(vii) A.D. 831. Wiglaf of Mercia for the archbishop. K. 227 (i. 294); B. i. 556: 'nisi his tantum causis, expeditione et arcis munitione pontisque constructione et singulare pretium contra alium.'

(viii) A.D. 835. Egbert of Wessex for Abingdon. K. 236 (i. 312); B. i. 577: 'de illa autem tribulatione que witereden nominatur sit libera, nisi tamen singuli pretium solverit ut talia accipiant. Fures quoque quos appellant weregeldðeofas si foras rapiautur, pretium eius dimidium illi aecclesiae, et dimidium regi detur, et si intus rapitur totum reddatur ad aecclesiam.'

(ix) A.D. 849. Berhtwulf of Mercia for his thegn Egbert. K. 262 (ii. 34); B. ii. 40: 'Liberabo ab omnibus saecularibus servitutibus ... nisi in confinio rationem reddant contra alium.'

(x) A.D. 855. Burhred of Mercia for the church of Worcester. K. 277 (ii. 58); B. ii. 88: 'nisi tantum quattuor causis, pontis et arcis, et expeditione contra hostes, et singulare pretium contra alium, et ad poenam nihil foras resolvat.

(xi) A.D. 883. Æthelred of Mercia for Berkeley. K. 313 (ii. 110); B. ii. 172: 'and þæt ic þæt mynster fram æghwelcum gafolum gefreoge þe to þiode hlafarde belimpeð, littles oððe micles, cuðes ge uncuðes, butan angilde wið oþrum and fæsten gewerce and fyrd socne and brycg geweorce ... æghwelces þinges to freon ge wið cyning, ge wið ealdorman, ge wið gerefan æghwelces þeodomes, lytles and micles, butan fyrd socne and fæsten geworce and brycg geworce and angylde wið oðrum and noht ut to wite.'

(xii) A.D. 888. Æthelred of Mercia for a thegn. K. 1068 (v. 133); B. ii. 194: 'liberam hanc terram describimus ab omnibus causis nisi singulare pretium contra aliud ponat et modum ecclesiae.' Is the modus [or modius] of the church the church-scot?

In a few other cases the immunity mentions penal causes, 'witeræden,' and no express exception is made of the ángild. Thus:--

(xiii) A.D. 842. Æthelwulf for a thegn. K. 253 (ii. 16); B. ii. 13: 'ut regalium tributum et principali dominacione et vi coacta operacione et poenalium condicionum furis comprehensione ... secura ... permaneat.'

(xiv) [Questionable]. A.D. 844. Æthelwulf for Malmesbury; one of the documents reciting the famous 'donation.' K. 1048 (v. 93); B. ii. 26; H. & S. iii. 630: 'ut sit tutus et munitus ab omnibus saecularibus servitutis, fiscis regalibus, tributis maioribus et minoribus, quod nos dicimus witereden.'

(xv) A.D. 877. Bp. Tunbert. K. 1063 (v. 121); B. ii. 163: 'a taxationibus quod dicimus wite redenne.'

The most detailed and at the same time the most hopelessly obscure information that we get is such as can be obtained from two Abingdon charters.

A.D. 821. Cenwulf. K. 214 (i. 269); B. i. 505; H. & S. iii. 556: 'Si pro aliquo delicto accusatur homo Dei aecclesiae ille custos solus cum suo iuramento si audeat illum castiget. Sin autem ut recipiat aliam iusticiam huius vicissitudinis conditionem praefatum delictum cum simplo praetio componat.'

A.D. 835. Egbert. K. 236 (i. 312); B. i. 577; H. & S. iii. 613. The same clause, but with alienam instead of aliam. Also the following:--'De illa autem tribulatione que witereden nominatur sit libera nisi tamen singuli [corr. singulare?] pretium solverit ut talia accipiant [accipiat?].'

This is very dark. Our best guess as to its meaning is this:--If a man of God, that is, a tenant of the church, is accused of crime, the custos of the church (this may mean the abbot, but more probably points to his reeve) may by his single oath purge the accused. But if he dare not do this, then he (the abbot or reeve) may pay the bót that is claimed, and by performing this condition he may obtain a transfer (vicissitudo) of the cause and do what other justice remains to be done, i.e. he may exact the wite. So in the second charter the abbot may pay the bót, the singulare pretium, and so obtain a right to exact the wite:--he makes the payment ut talia [i.e. witereden] accipiat. In guessing that vicissitudo points to a transfer of a suit, we have in mind the manner in which the Leges Henrici, 9 § 4, speak of the 'transition' of causes from court to court. The case that is being dealt with by these charters we take to be one in which an outsider in a 'foreign' court sues one of the abbot's tenants. The abbot can swear away the charge, or if he dares not do this, can obtain cognizance of the cause (in the language of a later day potest petere curiam suam) and therewith the right to the wite, but must in this case pay the restitutory bót, or rather, perhaps, find security that this shall be paid to the plaintiff in case he is successful. The clause may also imply that a multiple bót can not be exacted from the immunist's men, e.g. such a bót as we saw the Abbot of Pershore exacting from the Westminster men; but this is a minor question.

FOOTNOTES:

[934] Adams, The Anglo-Saxon Courts of Law (Essays in Anglo-Saxon Law, p. 1). Hallam, Middle Ages (ed. 1837), vol. ii. p. 416, says that of the right of territorial jurisdiction 'we meet frequent instances in the laws and records of the Anglo-Saxons, though not in those of early date.' The one charter older than Edward the Confessor that he cites is one of the Croyland forgeries. Kemble's opinion seems to have fluctuated; Saxons, i. 177 note, ii. 397, Cod. Dipl. i. xliv-xlvii. K. Maurer, Krit. Ueberschau, ii. 57, thinks that the existence of the private court is proved for Cnut's reign, but not for any earlier time. Dr Stubbs, Const. Hist. i. 119, seems to doubt whether it can be traced far beyond the days of Cnut. Zinkeisen, Die Anfänge der Lehngerichtsbarkeit in England (1893, a Berlin doctoral dissertation), criticizes Mr Adams's theory.Return to passage

[935] Essays, pp. 43-4.Return to passage

[936] See above, p. 84.Return to passage

[937] K. 853 (iv. 208); E. 343.Return to passage

[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.Return to passage

[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.'Return to passage

[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.Return to passage

[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.Return to passage

[942] Cnut, II. 12 (Schmid, p. 276).Return to passage

[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.Return to passage

[944] Brunner, Carta und Notitia (Commentationes in honorem T. Mommsen); Brunner, Zur Rechtsgeschichte der Röm. u. Germ. Urkunde.Return to passage

[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.Return to passage

[946] K. 731 (iv. 9); T. 308.Return to passage

[947] K. 642 (iii. 203); compare D. B. i. 41.Return to passage

[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.Return to passage

[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.Return to passage

[950] R. H. ii. 231.Return to passage

[951] R. H. ii. 458.Return to passage

[952] D. B. i. 172 b.Return to passage

[953] R. H. ii. 283.Return to passage

[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.Return to passage

[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.Return to passage

[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.Return to passage

[957] 'cum tolle et teame, saca et socne, et infangenetheof, et proprii iuris debitum transgressionis, et poenam delicti quae Anglice dicitur ofersæwnesse, et gyltwyte.'Return to passage

[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.'Return to passage

[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.Return to passage

[960] E.g. K. 1298 (vi. 149), 'Dis is seo freolsboc to ðan mynstre æt Byrtune.'Return to passage

[961] E.g. K. 277 (ii. 58), 278 (ii. 60).Return to passage

[962] A.D. 875; K. 306 (ii. 101); B. ii. 159.Return to passage

[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.'Return to passage

[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.'Return to passage

[965] See above, p. 229.Return to passage

[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.'Return to passage

[967] A.D. 1066, Edward the Confessor for Westminster, K. 828 (iv. 191): 'scotfre and gavelfre.'Return to passage

[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.Return to passage

[969] A.D. 904, K. 1084 (v. 157).Return to passage

[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.'Return to passage

[971] K. 1346 (vi. 205). Compare Fustel de Coulanges, L'Immunité Mérovingienne, Revue historique, xxiii. 21.Return to passage

[972] E.g. K. 1117 (v. 231): 'tribus semotis causis a quibus nullus nostrorum poterit expers fore'; K. v. pp. 259, 283, 334.Return to passage

[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_.Return to passage

[974] E.g. K. i. p. 274; ii. pp. 14, 15, 24, 26, 83; v. pp. 53, 62, 81.Return to passage

[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.'Return to passage

[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.Return to passage

[977] The clauses of immunity which mention the ángild will be collected in a note at the end of this section.Return to passage

[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.Return to passage

[979] These clauses will be discussed in a note at the end of this section.Return to passage

[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.Return to passage

[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.Return to passage

[982] Hist. Eng. Law, i. 565.Return to passage

[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.Return to passage

[984] Compare K. 821 (iv. 171): 'swa freols on eallan thingan eall swa thaes cinges agen innland.'Return to passage

[985] Hist. Eng. Law, i. 570.Return to passage

[986] Hist. Eng. Law, i. 580.Return to passage

[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.Return to passage

[988] Madox, Hist. Exch. i. 109; Bigelow, Placita Anglo-Normannica, 114.Return to passage

[989] Hist. Eng. Law, i. 224-30.Return to passage

[990] Nissl, Der Gerichtsstand des Clerus im Fränkischen Reich, 247.Return to passage

[991] K. 214 (i. 269); 236 (i. 312).Return to passage

[992] Edw. & Guth. 4; Leg. Henr. II, § 5.Return to passage

[993] D. B. i. 26.Return to passage

[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.'Return to passage

[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.'Return to passage

[996] c. 3, X. 5, 37: 'Accepimus ... quod archidiaconi Conventrensis episcopatus ... in examinatione ignis et aquae triginta denarios a viro et muliere quaerere praesumunt.'Return to passage

[997] Cnut II. 12-15.Return to passage

[998] Hist. Eng. Law, i. 564.Return to passage

[999] Beaudoin, op. cit. p. 94 ff.Return to passage

[1000] Æthelstan, II. 2.

[1001] Konrad Maurer, Krit. Ueberschau, ii. 30 ff.

[1002] Æthelstan, II. 3. Observe how in the Latin version 'se blaford the rihtes wyrne' becomes 'dominus qui rectum difforciabit.'

[1003] K. Maurer, Krit. Ueberschau, ii. 32, 40, 41. Ine, 22, is of great importance on account of its antiquity.

[1004] D. B. ii. 18 b: 'inde vocat dominum suum ad tutorem.' See above, p. 71.

[1005] Leg. Henr. 57, § 8; 82, §§ 4, 5, 6.

[1006] See above, p. 89.

[1007] Æthelstan, VI. (Iudicia Civitatis Lundoniae), 1.

[1008] Æthelred, I. 1, § 7.

[1009] Edgar, I. 2, 3; III. 7; IV. 2, § 8; Æthelred, I. 1; III. 3, 4, 7.

[1010] Æthelred, III. 3, 4.

[1011] Æthelred, III. 7.

[1012] Edgar, IV..= 2, § 11; Æthelred, I. 3.

[1013] D. B. i. 154. See above, p. 92.

[1014] See above, p. 275.

[1015] Northumbrian Priests' Law, Schmid, App. II. 48-9.

[1016] Ibid. 57, 58. See also the texts which give the lord a share with the bishop in the penalty for neglect to pay tithe, viz. Edgar, II. 3; Æthelred, VIII. 8; Cnut, I. 8.

[1017] K. 498 (ii. 386).

[1018] See above, p. 100.

[1019] The Archbishop of York, the bishops of Durham, Chester, Lincoln and (for one manor) Salisbury, the abbots of York, Peterborough, Ramsey, Croyland, Burton and (for one manor) Westminster.

[1020] D. B. i. 280 b; i. 337.

§ 4. Book-land and Loan-land.

[The book and the gift.]

We can not say that from the first the gift of book-land establishes between the donee and the royal donor any such permanent relation as that which in later times is called tenure. What the king gives he apparently gives for good and all. In particular, a gift of land to a church is 'an out and out gift'; nay more, it is a dedication. Still, even within the sphere of piety and alms, we sometimes find the notion that in consequence of the gift the donee should do something for the donor. Cnut frees the lands of the church of Exeter from all burdens except military service, bridge-repair and 'assiduous prayers[1021],' and thus the title by which the churches hold their lands is already being brought under the rubric Do ut des. Turning to the books granted to laymen, we see that, at all events from the middle of the tenth century onwards, they usually state a causa, or as we might say 'a consideration,' for the gift. Generally the gift is 'an out and out gift.' Words are used which expressly tell us that the donee is to enjoy the land during his life and may on his death give it to whomsoever he chooses. Nothing is said about his paying rent or about his rendering in the future any service to the king in return for the land. The 'consideration' that is stated in the instrument is, if we may still use such modern terms, 'a past consideration.' The land comes rather as a reward than as a retaining fee. Sometimes indeed the thegn pays money to the king and is in some sort a buyer of the land, though the king will take credit for generosity and will talk of giving rather than of selling[1022]. More often the land comes as a reward to him for obedience and fidelity or fealty. Already the word fidelitas is in common use; we have only to render it by fealty and the transaction between the king and his thegn will be apt to look like an infeudation, especially when the thegn is described by the foreign term vassallus[1023]. Even the general rule that the king is rewarding a past, rather than stipulating for a future fealty, is not unbroken. Thus as early as 801 we find Cenwulf of Mercia and Cuthræd of Kent giving land to a thegn as a perpetual inheritance 'but so that he shall remain a faithful servant and unshaken friend to us and our magnates[1024].' So again, in 946 King Edmund gives land to a faithful minister 'in order that while I live he may serve me faithful in mind and obedient in deed and that after my death he may with the same fealty obey whomsoever of my friends I may choose[1025].' The king, it will be seen, reserves the right to dispose by will of his thegn's fealty. A continuing relation is established between the king and his successors in title on the one hand, the holder of the book-land and his successors in title on the other.

[Book-land and service.]

However, as already said, the gift supposes that the personal relationship of lord and thegn already exists between the donor and the donee before the gift is made. This relationship was established by a formal ceremony; the thegn swore an oath of fealty, and it is likely that he bent his knee and bowed his head before his lord[1026]. The Normans saw their homage in the English commendation[1027]. The fidelity expected of the thegn is not regarded as a debt incurred by the receipt of land. And if the king does not usually stipulate for fidelity, still less does he stipulate for any definite service, in particular for any definite amount of military service. The land is not to be free of military service:--this is all that is said. However, to say this is to say that military service is already a burden on land. Already it is conceivable--very possibly it is true--that some of the lands of the churches have been freed even from this burden[1028]. What is more, if we may believe the Abingdon charters, the ninth century is not far advanced before the king is occasionally making bargains as to the amount of military service that the lands of the churches shall render. Abingdon need send to the host but twelve vassals and twelve shields[1029]. Likewise we see that on the eve of the Conquest, though other men who neglected the call to arms might escape with a fine of forty shillings, it was the rule, at least in Worcestershire, that the free man who had sake and soke and could 'go with his land whither he would' forfeited that land if he was guilty of a similar default[1030]. With this we must connect those laws of Cnut which say that the man who flees in battle, as well as the man who is outlawed, forfeits his book-land to the king, no matter who may be his lord[1031].

[Military service.]

Such rules when regarded from one point of view may well be called feudal. Book-land having been derived from, is specially liable to return to the king. It will return to him if the holder of it be guilty of shirking his military duty or of other disgraceful crime. To this we may add that if these rules betray the fact that the holder of this king-given land may none the less have commended himself and his land to some other lord against whose claims the king has to legislate, thereby they disclose a feudalism of the worst, of the centrifugal kind. The ancient controversy as to whether 'the military tenures' were 'known to the Anglo-Saxons' is apt to become a battle over words. The old power of calling out all able-bodied men for defensive warfare was never abandoned; but it was not abandoned by the Norman and Angevin kings. The holder of land was not spoken of as holding it by military service; but it would seem that in the eleventh century the king, save in some pressing necessity, could only ask for one man's service from every five hides, and the holder of book-land forfeited that land if he disobeyed a lawful summons[1032]. Whether a man who will lose land for such a cause shall be said to hold it by military service is little better than a question about the meaning of words. At best it is a question about legal logic. We are asked to make our choice (and yet may doubt whether our ancestors had made their choice) between the ideas of misdemeanour and punishment on the one hand and the idea of reentry for breach of condition on the other.

[Escheat of book-land.]

The same vagueness enshrouds the infancy of the escheat propter defectum tenentis. Already in 825 a king tells how he gave land to one of his praefecti who died intestate and without an heir, 'and so that land by the decree of my magnates was restored to me who had before possessed it[1033].' Here we seem to see the notion that when a gift has spent itself, when there is no longer any one who can bring himself within the words of donation, the given land should return to the giver. In another quarter we may see that when the king makes a gift he does not utterly abandon all interest in the land that is given. Cenwulf of Mercia in a charter for Christ Church at Canterbury tells us that King Egbert gave land to a certain thegn of his who on leaving the country gave it to the minster; but that Offa annulled this gift and gave away the land to other thegns, saying that it was unlawful for a thegn to give away without his lord's witness (testimonio) the land given to him by his lord[1034]. Cenwulf restored the land to the church; but he took money for it, and he does not say that Offa had acted illegally. There is much to show that the 'restraint on alienation' is one of the oldest of the 'incidents of tenure.' Our materials do not enable us to formulate a general principle, but certain it is that the holders of book-land, whether they be laymen or ecclesiastics, very generally obtain the consent of the king when they propose to alienate their land either inter vivos or by testament. We may not argue from this to any definite condition annexed to the gift, or to any standing relationship between the donor and the donee like the 'tenure' of later times. After all, it is a very natural thought that a reward bestowed by the king should not be sold or given away. The crosses and stars with which modern potentates decorate their fideles, we do not expect to see these in the market[1035]. The land that the king has booked to his thegn is an 'honour' and the giver will expect to be consulted before it passes into hands that may be unworthy of it. It may be just because the gift of book-land is made by the king and corroborated by all the powers of church and state, that the book is conceived as exercising a continuous sway over the land comprised in it. The book, it has well been said, is the lex possessionis of that land[1036]. It can make the land descend this way or that way, and the land will come back to the king if ever the power of the book be spent. What is more, from the first we seem to see a germ of our famous English rule that if a gift be made without 'words of inheritance' the gift will endure only during the life of the donee:--will endure, we say, for a gift is no mere act done once for all but a force that endures for a longer or a shorter period. Certain it is that most of the charters are careful to say that the gift is not thus to come to an end but is to go on operating despite the donee's death[1037].

[Alienation of book-land.]

And even when, as is generally the case, the book made in favour of a lay-man says that the donee is to have the power of leaving the land to whomsoever he may please, or to such heirs as he may choose, we still must doubt whether his testamentary power is utterly unrestrained, whether he will not have to consult the royal donor when he is making his will. The phenomena which we have here to consider are very obscure, because we never can be quite certain why it is that a testator is seeking the king's aid. We have to remember that the testament is an exotic, ecclesiastical institution which is likely to come into collision with the ancient folk-law. From an early time the church was striving in favour of the utmost measure of testamentary freedom, for formless wills, for nuncupative wills[1038]. The very largeness of its claims made impossible any definite compromise between church-right and folk-right. So far as we can see, no precise law is evolved as to when and how and over what a man may exercise a power of testation. The church will support testaments of the most formless kind; on the other hand, the heirs of the dead man will endeavour, despite the anathema, to break his will, and sometimes they will succeed[1039]. Consequently the testator will endeavour to obtain the crosses of the bishops and the consent of the king. He has already a book which tells him that he may leave the land to a chosen heir; but if he be prudent he will not trust to this by itself. Kings change their minds.

[The heriot and the testament.]

Then the law about heriots complicates the matter. The heriot has its origin in the duty of the dying thegn or of his heirs to return to his lord the arms which that lord has given or lent to him. We have to use some such vague phrase as 'given or lent'; we dare not speak more precisely[1040]. A time comes when the king provides his thegn, no longer with arms, but with land; still the heriot is rendered[1041]. In the tenth century this render is closely connected with the exercise of testamentary power. The thegn offers a heriot with a prayer that 'his will may stand.' He presents swords and money to the king in order that he may be worthy of his testament[1042]. When we find such phrases as this, we can not always be certain that the land of which the testator is going to dispose is land over which a book purports to give him testamentary power; he may be hoping that the king's aid will be sufficient to enable him to bequeath the unbooked land that he holds[1043]. In other cases he may be endeavouring to dispose of lands that have merely been 'loaned' to him for his life by the king. But this will hardly serve to explain all the cases, and we so frequently find the holder of book-land applying for the king's consent when he is going to make an alienation of it inter vivos that we need not marvel at finding a similar application made when he is about to execute a testament[1044].

[The gift and the loan.]

This having been said, we shall not be surprised to find that in ancient times the difference between a gift of land and a loan of land was not nearly so well marked as it would be by modern law. The loan may be regarded as a temporary gift, the gift as a very permanent, if not perpetual, loan. We know how this matter looks in the law of Bracton's age. By feoffment one gives land to a man for his life, or one gives it to him and the heirs of his body, or to him and his heirs: but in any case, the land may come back to the giver. The difference between the three feoffments is a difference in degree rather than in kind; one will operate for a longer, another for a shorter time; but, however absolute the gift may be, the giver never parts with all his interest in the land[1045]. Or we may put it in another way:--in our English law usufruct is a temporary dominium and dominium is a usufruct that may be perpetual. Or, once more, adopting the language of modern statutes, we may say that the tenant for life is no usufructuary but 'a limited owner.' We are accustomed to bring this doctrine into connexion with rules about dependent tenure:--the donor, we say, retains an interest in the land because he is the tenant's lord. But, on looking at the ancient land-books, we may find reason to suspect that the confusion of loans with gifts and gifts with loans (if we may speak of confusion where in truth the things confounded have never as yet been clearly distinguished) is one of the original germs of the rule that all land is held of the king. After all, the king--and he is by far the greatest giver in the country and his gifts are models for all gifts--never can really part with all the rights that he has in the land that he gives, for he still will be king of it and therefore in a sense it will always be part of his land. To maintain a sharp distinction between the rights that he has as king and the rights that he has as landlord, jurisprudence is not as yet prepared.--But we must look at the land-loan more closely.

[The precarium.]

Foreign historians have shown how after the barbarian invasions one single form of legal thought, or (if we may borrow a term from them), one single legal 'institute' which had been saved out of the ruins of Roman jurisprudence, was made to do the hard duty of expressing the most miscellaneous facts, was made to meet a vast multitude of cases in which, while one man is the owner of land, another man is occupying and enjoying it by the owner's permission. This institute was the precarium. Originally but a tenancy at will, it was elaborated into different shapes which, when their elaboration had been completed, had little in common. For some reason or another one begs (rogare) of a landowner leave to occupy a piece of land; for some reason or another the prayer is granted, the grantor making a display of generosity and speaking of his act as a 'benefit' (beneficium), an act of good-nature and liberality. An elastic form is thus established. The petitioner may, or may not, promise to pay a rent to his benefactor; the benefactor may, or may not, engage that the relationship shall continue for a fixed term of years, or for the life of the petitioner or for several lives. Usually this relationship between petitioner and benefactor is complicated with the bond of patronage: the former has commended himself to the latter, has come within his power, his protection, his trust (trustis), has become his fidelis, his homo. At a later time the inferior is a vassus, the superior is his senior, for the word vassus, which has meant a menial servant, spreads upwards. Then the precarium, as it were, divides itself into various channels. One of its streams encompasses the large province of humble tenancies, wherein the peasants obtain land from the churches and other owners on more or less arduous conditions, or reserve a right to occupy so long as they live the lands that they have given to the saints. Another stream sweeps onward into the domain of grand history and public law. The noble obtains a spacious territory, perhaps a county, from the king by way of 'benefaction'; the precarium becomes the beneficium, the beneficium becomes the feudum[1046]. The king can not prevent the beneficia, the feuda, from becoming hereditary.

[The English land-loan.]

The analogous English institution was the lǽn or, as we now say, loan. If in translating a German book we render Lehn by fief, feud, or fee, we should still remember that a Lehn is a loan. And no doubt the history of our ancient land-loans was influenced by the history of the precarium. We come upon the technical terms of continental law when King Æthelbald forbids any one to beg for a benefit or benefice out of the lands that have been given to the church of Winchester[1047]. There was need for such prohibitions. Edward the Elder prayed the bishop of this very church to lend him some land for his life; the bishop consented, but expressed a fervent hope that there would be no more of such requests, which in truth were very like commands. It would seem that some of the English kings occasionally did what had been done on a large scale in France by Charles Martel or his sons, namely, they compelled the churches to grant benefices to lay noblemen[1048]. When bishop Oswald of Worcester declared how he had been lending lands to his thegns, he used a foreign, technical term: 'beneficium quod illis praestitum est[1049].' But it is clear that the English conception of a land-loan was very lax; it would blend with the conception of a gift. To describe transactions of one and the same kind, if such verbs as commodare and lǽnan and lǽtan were used[1050], such words as conferre, concedere, tribuere, largiri and donare were also used[1051]. A loan is a temporary gift, and the nature of the transaction remains the same whether the man to whom the loan is made does, or does not, come under the obligation of paying rent or performing services.

[Loans of church lands to the great.]

Unfortunately our materials only permit us to study one branch of the loan; the aristocratic branch we may call it. No doubt the lords, especially the churches, are from an early time letting or 'loaning' lands to cultivators. Specimens of such agricultural leases we do not see and cannot expect to see, for they would hardly be put into writing. But at an early time we do see the churches loaning lands, and wide lands, to great men. This is a matter of much importance. One other course in the feudal edifice is thus constructed. We have seen the churches interposed between the king and the cultivators of the soil; the churches have become landlords with free land-holders under them. And now it is discovered that the churches have a superiority which they can lend to others. We see already a four-storeyed structure. There are the cultivator, the church's thegn, the church, the king. Very great men think it no shame to beg boons from the church. Already before 750 the bishop of Worcester has granted five manses to 'Comes Leppa' for lives[1052]; before the century is out the abbot of Medeshamstead has granted ten manses to the 'princeps' Cuthbert for lives[1053]. In 855 the bishop of Worcester gives eleven manses to the ealdorman of the Mercians and his wife for their lives[1054]; in 904 a successor of his makes a similar gift[1055]. But we have seen that the king himself was not above taking a loan from the church. Indeed powerful men insist on having loans, and the churches, in order to protect themselves against importunities, obtain from the king this among their other immunities, namely, that no lay man is to beg boons from them, or that no lease is to be for longer than the lessee's life[1056]. In such cases we may also see the working of a second motive: the church is to be protected against the prodigality of its own rulers. The leases made by the prelates seem usually to have been for three lives. This compass is so often reached, so seldom exceeded[1057] that we may well believe that the English church had accepted as a rule of sound policy, if not as a rule of law, the novel of Justinian which set the limit of three lives to leases of church lands[1058].

[The consideration for the loan.]

Occasionally the lease is made in consideration of a sum of money paid down; occasionally the recipient of the land comes under an express obligation to pay rent. An early example shows us the abbot of Medeshamstead letting ten manses to the 'princeps' Cuthbert for lives in consideration of a gross sum of a thousand shillings and an annual pastus or 'farm' of one night[1059]. The bishop of Worcester early in the ninth century concedes land to a woman for her life on condition that she shall cleanse and renovate the furniture of the church[1060]. On the other hand, when land is 'loaned' to a king or a great nobleman, this may be in consideration of his patronage and protection; the church stipulates for his amicitia[1061]. We may say that he becomes the advocatus of the church, and the patronage exercised by kings and nobles over the churches is of importance, though perhaps it was not quite so serious a matter in England as it was elsewhere.

[St. Oswald's loans.]

But from our present point of view by far the most interesting form that the loan takes is the loan to the thegn or the cniht. Happily it falls out that we have an excellent opportunity of studying this institution. We recall the fact that by the gifts of kings and underkings the church of Worcester had become entitled to vast tracts of land in Worcestershire and the adjoining counties. Now between the years 962 and 992 Bishop Oswald granted at the very least some seventy loans comprising in all 180 manses or thereabouts[1062]. In almost all cases the loan was for three lives. In a few cases the recipient was a kinsman of the bishop, in a few he was an ecclesiastic; far more generally he is described as 'minister meus,' 'fidelis meus,' 'cliens meus,' 'miles meus,' 'my knight,' 'my thegn,' 'my true man.' When the 'cause' or consideration for the transaction is expressed it is 'ob eius fidele obsequium' or 'pro eius humili subiectione atque famulatu': a recompense is made for fealty and service. Any thing that could be called a stipulation for future service is very rare. A definite rent is seldom reserved[1063]. Sometimes the bishop declares that the land is to be free from all earthly burdens, save service in the host and the repair of bridges and strongholds. To those excepted imposts he sometimes adds church-scot, or the church's rent, without specifying the amount. Sometimes he seems to go further and to say that the land is to be free from everything save the church's rent (ecclesiasticus census)[1064]. In so doing he gives a hint that the recipients of the lands will have something to pay to, or something to do for the church. Were it not for this, we might well think that these loans were made solely in consideration of past services, of obedience already rendered, and that at most the recipient undertook the vague obligation of being faithful and obsequious in the future.

[St. Oswald's letter to Edgar.]

But happily for us St. Oswald was a careful man of business and put on record in the most solemn manner the terms on which he made his land-loans. The document in which he did this is for our purposes the most important of all the documents that have come down to us from the age before the Conquest[1065]. It takes the form of a letter written to King Edgar. We will give a brief and bald abstract of it[1066]:--'I am (says the bishop) deeply grateful to you my lord, for all your liberality and will remain faithful to you for ever. In particular am I grateful to you for receiving my complaint and that of God's holy Church and granting redress by the counsel of your wise men[1067]. Therefore I have resolved to put on record the manner in which I have been granting to my faithful men for the space of three lives the lands committed to my charge, so that by the leave and witness of you, my lord and king, I may declare this matter to the bishops my successors, and that they may know what to exact from these men according to the covenant that they have made with me and according to their solemn promise. I have written this document in order that none of them may hereafter endeavour to abjure the service of the church. This then is the covenant made with the leave of my lord the king and attested, roborated and confirmed by him and all his wise men. I have granted the land to be held under me (sub me) on these terms, to wit, that every one of these men shall fulfil the whole law of riding as riding men should[1068], and that they shall pay in full all those dues which of right belong to the church, that is to say ciricsceott, toll, and tace or swinscead, and all other dues of the church (unless the bishop will excuse them from any thing), and shall swear that so long as they possess the said land they will be humbly subject to the commands of the bishop. What is more, they shall hold themselves ready to supply all the needs of the bishop; they shall lend their horses; they shall ride themselves, and be ready to build bridges and do all that is necessary in burning lime for the work of the church[1069]; they shall erect a hedge for the bishop's hunt and shall lend their own hunting spears whenever the bishop may need them. And further, to meet many other wants of the bishop, whether for the fulfilment of the service due to him or of that due to the king, they shall with all humility and subjection be obedient to his domination and to his will[1070], in consideration of the benefice that has been loaned to them, and according to the quantity of the land that each of them possesses. And when the term for which the lands are granted has run out, it shall be in the bishop's power either to retain those lands for himself or to loan them out to any one for a further term, but so that the said services due to the church shall be fully rendered. And in case any shall make wilful default in rendering the aforesaid dues of the church, he shall make amends according to the bishop's wite[1071] or else shall lose the gift and land that he enjoyed. And if any one attempt to defraud the church of land or service, be he deprived of God's blessing unless he shall make full restitution. He who keeps this, let him be blessed; he who violates this, let him be cursed: Amen. Once more, my lord, I express my gratitude to you. There are three copies of this document; one at Worcester, one deposited with the Archbishop of Canterbury and one with the Bishop of Winchester.'

[Feudalism in Oswaldslaw.]

Now we may well say that here is feudal tenure. In the first place, we notice a few verbal points. The recipient of the lǽn has received a beneficium from the bishop, and if he will not hold the land de episcopo, none the less he will hold it sub episcopo. Then he is the bishop's fidelis, his fidus homo, his 'hold and true man,' his thegn, his knight, his soldier, his minister, his miles, his eques. Then he takes an oath to the bishop, and seemingly this oath states in the most energetic terms his utter subjection to the bishop's commands. What is more, he swears to be faithful and obedient because he has received a beneficium from the bishop, and the amount of his service is measured by the quantity of land that he has received. Then again, we see that he holds his land by service; if he fails in his service, at all events if he denies his liability to serve, he is in peril of losing the land, though perhaps he may escape by paying a pecuniary fine. As to the services to be rendered, if we compare them with those of which Glanvill and Bracton speak, they will seem both miscellaneous and indefinite; perhaps we ought to say that they are all the more feudal on that account. The tenant is to pay the church-scot, the ecclesiasticus census of other documents. This, as we learn from Domesday Book, is one load (summa) of the best corn from every hide of land, and unless it be paid on St. Martin's day, it must be paid twelve-fold along with a fine[1072]. He must pay toll to the bishop when he buys and sells; he must pay tace, apparently the pannage of a later time, for his pigs. He must go on the bishop's errands, provide him with hunting-spears, erect his 'deer-hedge' when he goes to the chase. There remains a margin of unspecified services; for he must do what he is told to do according to the will of the bishop. But, above all, he is a horseman, a riding man and must fulfil 'the law of riding.' For a moment we are tempted to say 'the law of chivalry.' This indeed would be an anachronism; but still he is bound to ride at the bishop's command. Will he ride only on peaceful errands? We doubt it. He is bound to do all the service that is due to the king, all the forinsec service[1073] we may say. A certain quantity of military service is due from the bishop's lands; his thegns must do it. As already said, the obligation of serving in warfare is not yet so precisely connected with the tenure of certain parcels of land as it will be in the days of Henry II., but already the notion prevails that the land owes soldiers to the king, and probably the bishop has so arranged matters that his territory will be fully 'acquitted' if his equites, his milites take the field. Under what banner will they fight? Hardly under the sheriff's banner. Oswald is founding Oswaldslaw and within Oswaldslaw the sheriff will have no power. More probably they will follow the banner of St. Mary of Worcester. This we know, that in the Confessor's reign one Eadric was steersman of the bishop's ship and commander of the bishop's troops[1074]. This also we know, that in the suit between the churches of Worcester and of Evesham that came before the Domesday commissioners, one of the rights claimed by the bishop against the abbot was that the men of two villages, Hamton and Bengeworth, were bound to pay geld and to fight along with the bishop's men[1075]. And then, suppose that Danes or Welshmen or Englishmen make a raid on the bishop's land, is it certain that he will communicate with the ealdorman or the king before he calls upon his knights to defend and to avenge him? Still we must not bring into undue relief the military side of the tenure.

[Oswald's riding men.]

These men may be bound to fight at the bishop's call, but fighting is not their main business; they are not professional warriors. They are the predecessors not of the military tenants of the twelfth century, but of the radchenistres, and radmanni of Domesday Book, the rodknights of Bracton's text, the thegns and drengs of the northern counties who puzzle the lawyers of the Angevin time. Point by point we can compare the tenure of these ministri and equites of the tenth with that of the thegns and drengs of the twelfth and thirteenth centuries and at point after point we find similarity, almost identity. They pay rent; they have horses and their horses are at the service of their lord; they must ride his errands, carry his stores, assist him in the chase; they must fight if need be, but the exact nature of this obligation is indefinite[1076]. Dependent tenure is here and, we may say, feudal tenure, and even tenure by knight's service, for though the English cniht of the tenth century differs much from the knight of the twelfth, still it is a change in military tactics rather than a change in legal ideas that is required to convert the one into the other. As events fell out there was a breach of continuity; the English thegns and drengs and knights either had to make way for Norman milites, or, as sometimes happened, they were subjected to Norman milites and constituted a class for which no place could readily be found in the new jurisprudence of tenures. But had Harold won the day at Hastings and at the same time learnt a lesson from the imminence of defeat, some peaceful process would probably have done the same work that was done by forfeitures and violent displacements. The day for heavy cavalry and professional militancy was fast approaching when Oswald subjected his tenants to the lex equitandi.

[Heritable loans.]

Yet another of those feudal phenomena that come before us in the twelfth century may easily be engendered by these loans; we mean the precarious inheritance, the right to 'relieve' from the lord the land that a dead man held of him[1077]. In speaking of Oswald's loans as 'leases for three lives' we have used a loose phrase which might lead a modern reader astray. Oswald does not let land to a man for the lives of three persons named in the lease and therefore existing at the time when the lease is made; rather he lets the land to a man and declares that it shall descend to two successive heirs of his. The exact extent of the power that the lessee has of instituting an heir, in other words of devising the land by testament, instead of allowing it to be inherited ab intestato, we need not discuss; suffice it that the lessee's rights may twice pass from ancestor to heir, or from testator to devisee[1078]. Now such a lease may cover the better part of a century. A time will come when the land ought to return to the church that gave it; but for some eighty years it will have 'been in one family' and twice over it will have been inherited. Is it very probable that the bishop will be able to oust the third heir? Will he wish to do so, if three generations of thegns or knights have faithfully served the church? May we not be fairly certain that this third heir will get the land on the old terms, if he will 'recognize' the church's right to turn him out? As a matter of fact we see that Oswald's successors have great difficulty in recovering the land that he has let[1079]. In the middle ages he who allows land to descend twice has often enough allowed it to become heritable for good and all. Despite solemn charters and awful anathemas he will have to be content with a relief[1080].

[Wardship and marriage.]

But at least, it will be said, there was no 'right of wardship and marriage.' We can see the beginning of it. In 983 Oswald let five manses to his kinsman Gardulf. Gardulf is to enjoy the land during his life; after his death his widow is to have it, if she remains a widow or if she marries one of the bishop's subjects[1081]. So the bishop is already taking an interest in the marriages of his tenants; he will have no woman holding his land who is married to one who is not his man. And then Domesday Book tells us how in the Confessor's day one of Oswald's successors had disposed of an heiress and her land to one of his knights[1082].

[Seignorial jurisdiction.]

Still, it will be urged, the feudalism here displayed is imperfect in one important respect. These tenants of the church of Worcester hold their land under contracts cognizable by the national courts; they do not hold by any special feudal law, they are not subject to any feudal tribunal. Now if when we hear of 'feudalism,' we are to think of that orderly, centralized body of land-law which in Henry III.'s day has subjected the whole realm to its simple but mighty formulas, the feudalism of Oswald's land-loans is imperfect enough. But then we must remind ourselves that never in this country does feudal law (the Lehnrecht of Germany) become a system to be contrasted with the ordinary land law (Landrecht)[1083], and also we must observe that already in Oswald's day the thegns of the church of Worcester were in all probability as completely subject to a private and seignorial justice as ever were any freeholding Englishman. What court protected their tenure, what court would decide a dispute between them and the bishop? Doubtless--it will be answered--the hundred court. But in all probability that court, the court of the great triple hundred of Oswaldslaw was already in the hand of the bishop who gave it its name[1084]. The suits of these tenants would come into a court where the bishop would preside by himself or his deputy, and where the doomsmen would be the tenants and justiciables of the bishop--not indeed because tenure begets jurisdiction (to such a generalization as this men have not yet come)--but still, the justice that these tenants will get will be seignorial justice.

[Oswaldslaw and England at large.]

Now how far we should be safe in drawing from Oswald's loans and Oswaldslaw any general inferences about the whole of England is a difficult question. It is clear that the bishop was at great pains to regulate the temporal affairs of his church. He obtained for his leases the sanction of every authority human and divine, the consent of the convent, the ealdorman, the king, the witan; he deposited the covenant with the king, with the archbishop of Canterbury, with the bishop of Winchester. Also we must remember that he had lived in a Frankish monastery, and that, at least in things monastic, he was a radical reformer. Nor should it be concealed that in Domesday Book the entries concerning the estates of the church of Worcester stand out in bold relief from the monotonous background. Not only is the account of the hundred of Oswaldslaw prefaced by a statement which in forcible words lays stress on its complete subjection to the bishop, but in numerous cases the tenure of the nobler and freer tenants within that hundred is described as being more or less precarious:--they do whatever services the bishop may require; they serve 'at the will of the bishop'; no one of them may have any lord but the bishop; they are but tenants for a time and when that time is expired their land will revert to the church[1085].

[Inferences from Oswald's loans.]

However, we should hesitate long before we said that Oswald's land-loans were merely foreign innovations. His predecessors had granted leases for lives; other churches were granting leases for lives, and the important document that he sent to the king proves to us that we can not trust our Anglo-Saxon lease or land-book to contain the whole of the terms of that tenure which it created. Suppose that this unique document had perished, how utterly mistaken an opinion should we have formed of the terms upon which the thegns and knights of the church of Worcester held their lands! We should have heard hardly a word of money payments, no word of the oath of subjection, of the lex equitandi, of the indefinite obligation of obeying whatever commands the bishop might give. It may well be that the thegns and knights of other churches held on terms very similar to those that the bishop of Worcester imposed. Even if we think that Oswald was an innovator, we must remember that the adviser of Edgar, the friend of Dunstan, the reformer of the monasteries, the man who for thirty years was Bishop of Worcester and for twenty years Archbishop of York, was able to make innovations on a grand scale. What such a man does others will do. The yet safer truth that what Oswald did could be done, should not be meaningless for us. In the second half of the tenth century there were men willing to take land on such terms as Oswald has described.

[Economic position of Oswald's tenants.]

These men were not peasants. The land that Oswald gave them they were not going to cultivate merely by their own labour and the labour of their sons and their slaves, though we are far from saying that they scorned to handle the plough. We have in Domesday Book a description of their holdings, and it is clear that in the Confessor's day, when some of Oswald's leases must yet have been in operation, the lessees had what we should describe as small manors with villeins and cottagers upon them. Thus, for example, Eadric the Steersman, who led the bishop's host, had an estate of five hides which in 1086 had three villani and four bordarii, to say nothing of a priest, upon it[1086]. Like enough, what the bishop has been 'loaning' to his thegns has been by no means always 'land in demesne,' it has been 'land in service': in other words, a superiority, a seignory. Thus, as we say, another course of the feudal edifice is constructed. Above the cultivator stands the thegn or the cniht, who himself is a tenant under the bishop and who owes to the bishop services that are neither very light nor very definite. We can not but raise the question whether the cultivators, if we suppose them to be in origin free landowners, can support the weight of this superstructure without being depressed towards serfage. But we are not yet in a position to deal thoroughly with this question[1087].

[Loan-land and book-land.]

We must now return for a moment to the relation that exists between the loan and the book. Lǽnland is contrasted with bócland; but historians have had the greatest difficulty in discovering the principle that lies beneath this distinction[1088]. Certainly we can not say that, while book-land is created and governed by a charter, there will be no written instrument, no book, creating and governing the lǽn. We have books which in unambiguous terms tell us that they bear witness to loans. Nor can we say that the holder of book-land will always have a perpetual right to the land, 'an estate in fee simple,' an estate to him and his heirs. In many cases a royal charter will create a smaller estate than this; it will limit the descent of the land to the heirs male of the donee. Moreover the written leases for three lives of which we have been speaking are 'books.' Thus in 977 Oswald grants three manses to his thegn Eadric for three lives, and the charter ends with a statement which tells us in English that Oswald the archbishop is booking to Eadric his thegn three hides of land which Eadric formerly held as lǽnland[1089]. A similar deed of 985 contains a similar statement; five hides which Eadric held as lǽnland are now being booked to him, but booked only for three lives[1090]. In yet another of Oswald's charters we are told that the donee is to hold the land by way of book-land as amply as he before held it by way of lǽnland[1091]. After this it is needless to say that book-land may be burdened with rents and services. But indeed it would seem that Oswald's thegns and knights held both book-land and lǽnland. It was book-land because it had been booked to them, and yet very certainly it had only been loaned to them[1092].

[Book-land in the dooms.]

Let us then turn to the laws and read what they say about book-land. Two rules stand out clearly. Æthelred the Unready declares that every wíte incurred by a holder of book-land is to be paid to the king[1093]. Cnut declares that the book-land of the outlaw, whosesoever man he may be, and of the man who flies in battle is to go to the king[1094]. These laws seem to put before us the holder of book-land as standing by reason of his land in some specially close relationship to the king. If we may use the language of a later day, the holder of book-land is a tenant in chief of the king, and this even though he may have commended himself to someone else. On the other hand, if the holder of lǽnland commits a grave crime, his land reverts, or escheats or is forfeited to the man who made the lǽn[1095]. And yet, though this be so and though Oswald's thegns will in some sense or another be holding book-land, we may be quite certain that should one of them be outlawed the bishop will claim the land. Indeed he is careful about this as about other matters. Often he inserts in his charter a clause saying that, whatever the grantee may do, the land shall return unforfeited to the church.

[Relation of loan-land to book-land.]

Any solution of these difficulties must be of a somewhat speculative kind. We fashion for ourselves a history of the book and of the land-loan which runs as follows:--The written charter first makes its appearance as a foreign and ecclesiastical novelty. For a very long time it is used mainly, if not solely, as a means of endowing the churches with lands and superiorities. It is an instrument of a very solemn character armed with the anathema and sanctioned by the crosses of those who can bind and loose. Usually it confers rights which none but kings can bestow, and which even kings ought hardly to bestow save with the advice of their councillors. A mass of rights held under such a charter is book-land, or, if we please, the land over which such rights are exercisable, is book-land for the grantee. In course of time similar privileges are granted by the kings to their thegns, though the book does not thereby altogether lose its religious traits. It is long before private persons begin to use writing for the conveyance or creation of rights in land. The total number of the books executed by persons who are neither kings, nor underkings, nor prelates of the church, was, we take it, never very large; certainly the number of such books that have come down to us is very small.

[Royal and other books.]

Nothing could be more utterly unproved than the opinion that in Anglo-Saxon times written instruments were commonly used for the transfer of rights in land. Let us glance for a moment at the documents that purport to have come to us from the tenth century. Genuine and spurious we have near six hundred. But we exclude first the grants made by the kings, secondly Oswald's leases and a few similar documents executed by other prelates, thirdly a few testamentary or quasi-testamentary dispositions made by the great and wealthy. Hardly ten documents remain. Let us observe their nature. The ealdorman and lady of the Mercians make a grant to a church in royal fashion[1096]; but in every other case in which we have a document which we can conceive as either transferring rights in land or as being formal evidence of such a transfer, the consent of the king or of the king and witan to the transaction is stated, and with hardly an exception the king executes the document[1097]. Even the holder of book-land who wished to alienate it, for example, the thegn who wished to pass on his book-land to a church, did not in general execute a written conveyance. One of three courses was followed. The donor handed over his own book, the book granted by the king, and apparently this was enough; or the parties to the transaction went before the king, delivered up the old and obtained a new book; or the donor executed some brief instrument--sometimes a mere note endorsed on the original book--stating how he had transferred his right[1098]. But in any case, according to the common usage of words, a usage which has a long history behind it, it is only the man who is holding under a royal privilege who has 'book-land.' It is to this established usage that the laws refer when they declare that the king and no lower lord is to have the wíte from the holder of book-land, and that when book-land is forfeited it is forfeited to the king. For all this, however, if you adhere to the letter, book-land can only mean land held by book. Now from a remote time men have been 'loaning' land, and prelates when they have made a loan have sometimes executed a written instrument, a book. A prelate can pronounce the anathema and the recipient of the lǽn may well wish to be protected, not merely by writing, but by Christ's rood. When therefore Bishop Oswald grants a written lease to one of his thegns who heretofore has been in enjoyment of the land but has had no charter to show for it, we may well say that in the future this thegn will have book-land, though at the same time he has but loan-land. We have no scruple about charging our ancestors with having a confused terminology. The confusion is due to a natural development; 'books' were formerly used only for one purpose, they are beginning to be used for many purposes, and consequently 'book-land' may mean one thing in one context, another in another. We may say that every one who holds under a written document holds book-land, or we may still confine the name 'book' to that class of books which was at one time the only class. The king's charters, the king's privileges, have been the only books; they are still books in a preeminent sense. Just so in later days men will speak of 'tenure in capite' when what they really mean is 'tenure in capite of the crown by military service[1099].'

[The gift and the loan.]

But there is a deeper cause of perplexity. Once more we must repeat that the gift shades off into the loan, the loan into the gift. The loan is a gift for a time. It is by words of donation ('I give,' 'I grant') that Oswald's beneficia are praestita to his knights and thegns. Conversely, the king's most absolute gift leaves something owing and continuously owing to him; it may be prayers, it may be fealty and obedience. And having considered by how rarely good fortune it is that we know the terms of Oswald's land-loans, how thoroughly we might have mistaken their nature but for the preservation of a single document, we shall be very cautious in denying that between many of the holders of book-land and the king there was in the latter half of the tenth century a relationship for which we have no other name than feudal tenure. If Oswald's charters create such a tenure, what shall we say of the numerous charters whereby Edred, Edwy, Edgar and Æthelred grant land to their thegns in consideration of fealty and obedience? Must not these thegns fulfil the whole lex equitandi; will they not lose their lands if they fail in this service? True that the rights conferred upon them are not restrained within the compass of three lives but are heritable ad infinitum. But does this affect the character of their tenure? Can we--we can not in more recent times--draw any inference from 'the quantum of the estate' to 'the quality of the tenure'? On the whole, we are inclined to believe that the practice of loaning lands affected the practice of giving lands, there being no sharp and formal distinction between the gift and the loan, and that when Edward the Confessor died no great injustice would have been done by a statement that those who held their lands by royal books held their lands 'of' the king. This at least we know, that the formula of dependent tenure ('A holds land of B') was current in the English speech of the Confessor's days and that some of the king's thegns held their land 'of' the king[1100]. We may guess that those old terms 'book-land' and 'loan-land' would soon have disappeared even from an unconquered England, for it was becoming plain that the book bears witness to a loan. A new word was wanted; that word was feudum.

FOOTNOTES:

[1021] K. 729 (iv. 3).

[1022] It is noticeable that the verb syllan usually means 'to give.' Words such as vendere are avoided.

[1023] A.D. 941, K. 390 (ii. 234) condemned by Kemble: 'amabili vassallo meo.'--A.D. 952, K. 431 (ii. 302): 'cuidam vassallo.'--A.D. 956? K. 462 (ii. 338): 'meo fideli vassallo.'--A.D. 967, K. 534 (iii. 11): 'meo fideli vassallo.'--A.D. 821, K. 214 (i. 269): 'expeditionem cum 12 vassallis et cum tantis scutis exerceant.' After the Norman Conquest the word is very rare in our legal texts.

[1024] K. 179 (i. 216): 'eo videlicet iure si ipse nobis et optimatibus nostris fidelis manserit minister et inconvulsus amicus.'

[1025] K. 408 (ii. 263): 'eatenus ut vita comite tam fidus mente quam subditus operibus mihi placabile obsequium praebeat, et meum post obitum cuicunque meorum amicorum voluero eadem fidelitate immobilis obediensque fiat.'

[1026] The terms of the oath are given in Schmid, App. X.

[1027] See above, p. 69.

[1028] See above, p. 69.

[1029] K. 214 (i. 269); H. & S. iii. 556.

[1030] D. B. i. 172; see above, p. 159.

[1031] Cnut, II. 13, 77.

[1032] See above, p. 156.

[1033] K. 1035 (v. 76). The charter is not beyond suspicion, but Kemble has received, and the editors of the Councils (H. & S. iii. 607) have refused to condemn it.

[1034] K. 1020 (v. 60); B. i. 409; H. & S. iii. 528.

[1035] See Brunner, Die Landschenkungen der Merowinger und der Agilolfinger, Forschungen, p. 6: 'He who receives an order acquires in the insignia of the order which are delivered to him an ownership of an extremely attenuated kind. He can not give them away or sell them or let them out or give them in dowry. When he dies they go back to the giver.' We are not aware of any English decision on such matters as these. In a charter for Winchester (B. ii. 238) Edward the Elder is represented as saying that the land that he gives to the church is never to be alienated. If, however, the monks must sell or exchange it, then they may return it 'to that royal family by whom it was given to them.'

[1036] Brunner, Zur Rechtsgeschichte d. röm. u. germ. Urkunde, p. 190; Hist. Eng. Law, ii. 12.

[1037] See Brunner, Landschenkungen, Forschungen, p. 1. In this paper Dr Brunner appealed to our English law, in order that he might settle the famous controversy between Waitz and Roth as to the character of the gifts of land made by the Merovingians. On p. 5 he denies that our rule about 'words of inheritance' should be called feudal. Its starting point is the principle that the quality [an English lawyer would add--and the quantity also] of the 'estate' (Besitzrecht) can be determined by the donor's words, by a lex donationis imposed by the donor on the land.

[1038] Brunner, Geschichte der Urkunde, p. 200.

[1039] Heming's Cartulary, i. 259. 'Post mortem autem eius, filius eius ... testamentum patris sui irritum faciens....' Ibid. p. 263: 'Brihtwinus ... eandem terram Deo et Sanctae Mariae obtulit, eundemque nepotem suum monachum fecit. Filius eius etiam, Brihtmarus nomine, pater ipsius iam dicti Edwini monachi, cum heres patris extitisset, ... ipsam ... villam monasterio dedit.' Hist. Eng. Law, ii. 250.

[1040] Brunner, Forschungen, p. 22; Hist. Eng. Law, i. 292.

[1041] Crawford Charters (ed. Napier and Stevenson), pp. 23, 126. Early in cent. xi. a bishop in his testament declares how he gives 'to each retainer his steed which he had lent him.'

[1042] See the wills collected by Thorpe; p. 501: Gift to the queen for her mediation that the will may stand. Ibid. p. 505: 'And bishop Theodred and ealdorman Eadric informed me, when I gave my lord the sword that king Edmund gave me ... that I might be worthy of my testament (mine quides wirde). And I never ... have done any wrong to my lord that it may not so be.' Ibid. p. 519: 'And I pray my dear lord for the love of God that my testament may stand.' See also pp. 528, 539, 543, 552, 576.

[1043] Thus ealdorman Alfred disposes (but with the consent of the king and all his witan) of his 'heritage' as well as of his book-land; Thorpe, 480. Lodge, Essays on A.-S. Law, p. 108, supposes a certain power of regulating the descent of 'family land' within the family.

[1044] K. 414 (ii. 273): 'Ego Wulfricus annuente et sentiente et praesente domino meo rege ... concessi ... terram iuris mei ... quam praefatus rex Eadredus mihi dedit in perpetuam hereditatem cum libro eiusdem terrae.'--K. 1130 (v. 254): 'Ego Eadulfus dux per concessionem domini mei regis ... concedo ... has terras de propria possessione mea quas idem ... rex dedit in perpetuam hereditatem.'--K. 1226 (vi. 25): 'Ego Ælfwordus minister Regis Eadgari concedo ... annuente domino meo rege ... villam unam de patrimonio meo.'

[1045] Except in the cases, comparatively rare before the statute Quia Emptores, in which the feoffee is to hold of the feoffor's lord.

[1046] Fustel de Coulanges, Les origines du système féodal; Brunner, D. R. G. i. 209-12.

[1047] K. 1058 (v. 115); B. ii. 89: 'et nullus iam licentiam ulterius habeat Christi neque sancti Petri ... neque ausus sit ulterius illam terram praedictam _rogandi in beneficium_.'

[1048] K. 1089 (v. 166); B. ii. 281. See also K. 262 (ii. 33); B. ii. 40; Birhtwulf of Mercia takes a lease for five lives from the church of Worcester and assigns it to a thegn. The consideration for this lease is a promise that for the future he will not make gifts out of the goods of the church.

[1049] K. 1287 (vi. 124). The verb praestare was the regular term for describing the action of one who was constituting a precarium or beneficium. In K. 1071 (v. 138) Bp Werferth of Worcester obtains a lease for three lives having petitioned for it; 'terram ... humili prece deprecatus fui.'

[1050] For commodare see K. v. pp. 166, 169, 171; for lǽnan, ibid. 162; for lǽtan, ibid. 164.

[1051] See Bp Oswald's leases.

[1052] K. 91 (i. 109).

[1053] K. 165 (i. 201).

[1054] K. 279 (ii. 61).

[1055] K. 339 (ii. 149).

[1056] See the charter of Cenwulf for Winchcombe, H. & S. iii. 572 and the editors' note at 575. See also K. 610 (iii. 157), 1058 (v. 115), 1090 (v. 169).

[1057] K. 262 (ii. 33) is a lease for five lives by the church of Worcester; but the lessee is a king.

[1058] Nov. 7, 3. See Brunner, Zur Rechtsgeschichte der röm. u. germ. Urkunde, 187. Theodore of Tarsus would perhaps have known this rule. It does not belong to the general western tradition of Roman law, but is distinctly Justinianic.

[1059] K. 165 (i. 201). The 'limitation' is not very plain; but we seem to have here a lease for two lives.

[1060] K. 182 (i. 220).

[1061] K. 262 (ii. 33); B. ii. 40: lease by church of Worcester to the king for five lives: 'et illi dabant terram illam ea tamen conditione ut ipse rex firmius amicus sit episcopo praefato et familia in omnibus bonis eorum.' K. 279 (ii. 61): lease by the same church to a dux and his wife with stipulation for amicitia.

[1062] These are preserved in Heming's Cartulary; see K. 494-673.

[1063] In K. 498 (ii. 386) the aecclesiasticus census is two modii of clean grain; in K. 511 (ii. 400) the lessee must mow once and reap once 'with all his craft'; in K. 508 (ii. 398) he must sow two acres with his own seed and reap it; in K. 661 (iii. 233) is a similar stipulation.

[1064] In many cases the clause of immunity has become very obscure owing to a copyist's blunder. It is made to run thus: 'Sit autem terra ista libera omni regi nisi aecclesiastici censi.' Some mistake between rei and regi may be suspected. What we want is what we get in some other cases, e.g. K. 651, 652, viz. 'libera ab omni saecularis rei negotio.' The following forms are somewhat exceptional; K. 530 and 612, 'butan ferdfare and walgeworc and brycgeworc and circanlade'; K. 623, 666, 'excepta sanctae dei basilicae suppeditatione et ministratione'; K. 625, 'exceptis sanctae dei aecclesiae necessitatibus et utilitatibus.'

[1065] Kemble gives it in Cod. Dipl. 1287 (vi. 124) and in an appendix to vol. i. of his history. Also he speaks of it in Cod. Dipl. i. xxxv., and there says that it is 'a laboured justification' by Bp Oswald of his proceedings. To my mind it is nothing of the kind. Oswald is proud of what he has done and wishes that a memorial of his acts may be carefully preserved for the benefit of the church. Of course, if regarded from our modern point of view, the form of the document is curious. The bishop seems engaged in an attempt to bind his lessees by his own unilateral account of the terms to which they have agreed. But his object is to have of the contract a record which has been laid before the king and the witan and which, if we are to use modern terms, will have all the force of an act of parliament, to say nothing of the anathema.

[1066] In places its language becomes turbid and well-nigh untranslatable.

[1067] It may be that the bishop has just obtained from the king a grant or confirmation of the hundredal jurisdiction over what is to be Oswaldslaw.

[1068] K. vi. 125: 'hoc est ut omnis equitandi lex ab eis impleatur quae ad equites pertinet.'

[1069] K. vi. 125: 'et ad totum piramiticum opus aecclesiae calcis atque ad pontis aedificium ultro inveniantur parati.' The translation here given is but guesswork; we suppose that piramiticus means 'of or belonging to fire (πῦρ).'

[1070] Ibid.: 'insuper ad multas alias indigentiae causas quibus opus est domino antistiti frunisci, sive ad suum servitium sive ad regale explendum, semper illius archiductoris dominatui et voluntati qui episcopatui praesidet ... subditi fiant.' Is archiductor but a fine name for the bishop? We think not. In the Confessor's day Eadric the Steersman was 'ductor exercitus episcopi ad servitium regis' (Heming, i. 81), and it would seem from this that the tenants were to be subject to a captain set over them by the bishop. But in the famous, if spurious, charter for Oswaldslaw (see above, p. 268) Edgar says that on a naval expedition the bishop's men are not to serve under the ordinary officers 'sed cum suo archiductore, videlicet episcopo, qui eos defendere et protegere debet ab omni perturbatione et inquietudine.' This would settle the question, could we be certain that the words 'videlicet episcopo' were not the gloss of a forger who was improving an ancient instrument. For our present purpose, however, it is no very important question whether the archiductor, the commander in chief of these tenants, is the bishop himself or an officer of his.

[1071] Ibid.: 'praevaricationis delictum secundum quod praesulis ius est emendet.'

[1072] D. B. 174. Compare the entry on f. 175 b relating to the church-scot of Pershore.

[1073] Hist. Eng. Law, i. 217. See also D. B. i. 165 b, Hinetune.

[1074] Heming, i. 81: 'Edricus qui fuit, tempore regis Edwardi, stermannus navis episcopi et ductor exercitus eiusdem episcopi ad servitium regis.' D. B. i. 173 b: 'Edricus stirman' held five hides of the bishop.

[1075] Heming, i. 77: 'Et [episcopus] deracionavit socam et sacam de Hamtona ad suum hundred de Oswaldes lawe, quod ibi debent placitare et geldum et expeditionem ... persolvere.'

[1076] Maitland, Northumbrian Tenures, Eng. Hist. Rev. v. 625.

[1077] Hist. Eng. Law, i. 288.

[1078] In this respect Oswald's leases seem to have closely resembled a form of lease, known as manusfirma, which became common in the France of the eleventh century: Lamprecht, Beiträge zur Geschichte des französischen Wirthschaftslebens, pp. 59, 60.

[1079] Heming, i. 259: 'Ac primo videndum quae terrae trium heredum temporibus accommodatae sint, post quorum decessum iuri monasterii redderentur, quaeve postea iuxta hanc conventionem redditae, quaeve iniuste sunt retentae, sive ipsorum, qui eas exigere deberent, negligentia, sive denegatae sint iniquorum hominum potentia.' See also the story told by Heming on p. 264.

[1080] Lamprecht, op. cit. p. 61, says that it was quite uncommon for the French landlord to get back his land if once he let it for three lives. One of the Worcester leases, but one stigmatized by Kemble (ii. 152), is a lease for three lives 'nisi haeredes illius tempus prolixius a pontifice sedis illius adipisci poterint.'

[1081] K. 637 (iii. 194): 'si in viduitate manere decreverit, vel magis nubere voluerit, ei tamen viro qui episcopali dignitati supradictae aecclesiae sit subiectus.'

[1082] D. B. i. 173: 'Hanc terram tenuit Sirof de episcopo T. R. E., quo mortuo dedit episcopus filiam eius cum hac terra cuidam suo militi, qui et matrem pasceret et episcopo inde serviret.'

[1083] Hist. Eng. Law, i. 214.

[1084] See above, p. 267.

[1085] D. B. i. 172 b: 'Hae praedictae ccc. hidae fuerunt de ipso dominio aecclesiae, et si quid de ipsis cuicunque homini quolibet modo attributum vel praestitum fuisset ad serviendum inde episcopo, ille qui eam terram praestitam sibi tenebat nullam omnino consuetudinem sibimet inde retinere poterat nisi per episcopum, neque terram retinere nisi usque ad impletum tempus quod ipsi inter se constituerant, et nusquam cum ea terra se vertere poterat ... Kenewardus tenuit et deserviebat sicut episcopus volebat ... Ricardus tenuit ad servitium quod episcopus voluit ... Godricus tenuit serviens inde episcopo ut poterat deprecari ... Godricus tenuit ad voluntatem episcopi.'

[1086] D. B. 173 b.

[1087] Oswald's tenants closely resemble the ministeriales of foreign bishops; see Waitz, Verfassungsgeschichte, v. 283-350. Oswald's lex equitandi may be compared with what is said (ibid. p. 293) of a bishop of Constance: 'quibus omnibus hoc ius constituit, ut cum abbate equitarent eique domi forisque ministrarent, equos suos tam abbati quam fratribus suis quocumque necesse esset praestarent, monasterium pro posse suo defensarent.'

[1088] Kemble, Saxons, i. 310 ff.; K. Maurer, Krit. Ueb. i. 104; Essays in Anglo-Saxon Law, No. ii. (Lodge); Brunner, Geschichte d. röm. u. germ. Urkunde, 182.

[1089] K. 617 (iii. 164).

[1090] K. 651 (iii. 216).

[1091] K. 679 (iii. 258).

[1092] K. 1287 (vi. 125): 'propter beneficium quod eis praestitum est.' D. B. i. 173 b. It may cross the reader's mind that the leases of which Oswald speaks in his letter to Edgar are not the transactions recorded in the charters that have come down to us, but other and unwritten leases. But Domesday Book and the stories told by Heming make against this explanation.

[1093] Æthelr. I. 1, § 14.

[1094] Cnut, II. 13, 77.

[1095] K. 328 (ii. 133): A certain Helmstan is guilty of theft 'and mon gerehte ðæt yrfe cinge forðon he wes cinges mon and Ordlaf feng to his londe forðan hit wæs his læn ðæt he on sæt.'

[1096] K. 330 (ii. 136).

[1097] K. 414 (ii. 273): conveyance by Wulfric with the king's consent.--K. 491 (ii. 379): conveyance by Wulfstan with consent of king and witan, who execute the deed.--K. 690-1 (iii. 286-8): conveyances by Æscwig executed by king and witan.--K. 1124, 1130 (v. 246-54): conveyances confirmed by king and bishops.--K. 1201 (v. 378): exchange with king's consent.--K. 1226 (vi. 25): conveyance by a thegn reciting king's consent. A few documents we must leave unclassified; K. 499, 591, 693; we do not know how they were executed or what was their evidential value.

[1098] Brunner, Geschichte d. röm. u. germ. Urkunde, p. 175.

[1099] Hist. Eng. Law, i. 212.

[1100] K. 843 (iv. 201): 'swa full and swa forð swa Ðurstan min huskarll hit furmest of me heold.'--K. 846 (iv. 205): 'swa full and swa forð swa Sweyn mi may hit formest of me held.'--K. 826 (iv. 190): 'swa Ælfwin sy nunne it heold of ðan minstre.'--K. 827 (iv. 190): 'swa Sihtric eorll of ðan minstre þeowlic it heold.' If K. 1237 (vi. 44) be genuine (and Kemble has not condemned it) then already in the middle of the tenth century 'Goda princeps tenuit terram de rege,' nor only so, 'tenuit honorem de rege'; but this document is unacceptable. At best it may be a late Latin translation of an English original.

§ 5. The Growth of Seignorial Power.

[Subjection of free men.]

We now return to our original theme, the subjection to seignorial power of free land-holders and their land, for we now have at our command the legal machinery, which, when set in motion by economic and social forces, is capable of effecting that subjection. Let us suppose a village full of free land-holders. The king makes over to a church all the rights that he has in that village, reserving only the trinoda necessitas and perhaps some pleas of the crown. The church now has a superiority over the village, over the ceorls; it has a right to receive all that, but for the king's charter, would have gone to him.

[The royal grantee and his land.]

In the first place, it has a right to the feorm, the pastus or victus that the king has hitherto exacted. We should be wrong in thinking that in the ninth century (whatever may have been the case in earlier times) this exaction was a small matter. In 883 Æthelred ealdorman of the Mercians with the consent of King Alfred freed the lands of Berkeley minster from such parts of the king's gafol or feorm as had until then been unredeemed. In return for this he received twelve hides of land and thirty mancuses of gold, and then in consideration of another sixty mancuses of gold he proceeded to grant a lease of these twelve hides for three lives[1101]. The king had been deriving a revenue from this land 'in clear ale, in beer, in honey, in cattle, in swine and in sheep.' In Domesday Book a 'one night's farm' is no trifle; it is all that the king gets from large stretches of his demesne[1102]. Having become entitled to this royal right, the church would proceed to make some new settlement with the villagers. Perhaps it would stipulate for a one night's farm for the monks, that is to say, for a provender-rent capable of supporting the convent for a day. In the middle of the ninth century a day's farm of the monks of Canterbury comprised forty sesters of ale, sixty loaves, a wether, two cheeses and four fowls, besides other things[1103]. When once a village is charged in favour of a lord with a provender-rent of this kind, the lord's grip upon the land may easily be tightened. A settlement in terms of bread and beer is not likely to be stable. Some change in circumstances will make it inconvenient to all parties and the stronger bargainer will make the best of the new bargain. The church will be a strong bargainer for it has an inexhaustible treasure-house upon which to draw. We, however, concerned with legal ideas, have merely to notice that the law will give free play to social, economic and religious forces which are likely to work in the lord's favour.

[Provender rents and the manorial economy.]

But a village charged with a 'provender-rent' may seem far enough removed from the typical manor of the twelfth and thirteenth centuries. In the one we see the villagers cultivating each for his own behoof and supplying the lord at stated seasons with a certain quantity of victuals; in the other the villagers spend a great portion of their time in tilling the lord's demesne land. In the latter case the lord himself appears as an agriculturist: in the former he is no agriculturist, but merely a receiver of rent. The gulf may seem wide; but it is not impassable. One part, the last part, of a process which surmounts it is visible. In the eleventh and twelfth centuries the lords, though they have much land in demesne, still reckon the whole or part of what they are to receive from each manor in terms of 'farms'; the king gets a one night's farm from this manor, the convent of Ramsey gets a fortnight's farm from that manor[1104]. But we can conceive how the change begins. The monks are not going to travel, as a king may have travelled, from village to village feasting at the expense of the folk. They are going to live in their monastery; they want a regular supply of victuals brought to them. They must have an overseer in the village, one who will look to it that the bread and beer are sent off punctually and are good. In the village over which they already have a superiority they acquire a manse of their very own, a mansus indominicatus as their foreign brethren would call it. When once they are thus established in the village, piety and other-worldliness will do much towards increasing their demesne and strengthening their position[1105].

[The church and the peasants.]

We have argued above that in the first instance it was not by means of the petty gifts of private persons that the churches amassed their wide territories. The starting point is the alienation of a royal superiority. Still there can be little doubt that the small folk were just as careful of their souls as were their rulers. They make gifts to the church. Moreover, the gift is likely to create a dependent tenure. They want to give, and yet they want to keep, for their land is their livelihood. They surrender the land to the church: but then they take it back again as a life-long loan. Thus the church has no great difficulty about getting demesne. But further, it gets dependent tenants and a dependent tenure is established. Like enough on the death of the donor his heirs will be suffered to hold what their ancestor held. Very possibly the church will be glad to make a compromise, for it may be doubtful whether these donationes post obitum[1106], or these gifts with reservation of an usufruct, can be defended against one, who, not having the fear of God before his eyes, will make a determined attack upon them. Gradually the church becomes more and more interested in the husbandry of the village. It receives gifts; it makes loans; it substitutes labour services to be done on its demesne lands for the old feorm of provender. It is rash to draw inferences from the fragmentary and obscure laws of Ine; but one of them certainly suggests that, at least in some district of Wessex, this process was going on rapidly at the end of the seventh century, so rapidly and so oppressively that the king had to step in to protect the smaller folk. The man who has taken a yard of land at a rent is being compelled not only to pay but also to labour. This, says the king, he need not do unless he is provided with a house[1107].

[Growth of the manorial system.]

Now we are far from saying that the manorial system of rural economy is thus invented. From the time of the Teutonic conquest of England onwards there may have been servile villages, Roman villas with slaves and coloni cultivating the owner's demesne, which had passed bodily to a new master. We have no evidence that is capable of disproving or of proving this. What we think more probable is that in those tracts where true villages (nucleated villages, as we have before now called them[1108]) were not formed, the conquerors fitted themselves into an agrarian scheme drawn for them by the Britons, and that in the small scattered hamlets which existed in these tracts there was all along a great deal of slavery[1109]. But, at any rate, the church was a cosmopolitan institution. Many a prelate of the ninth and tenth centuries, Bishop Oswald for one, must have known well enough how the foreign monasteries managed their lands, and, whatever controversies may rage round questions of remoter history, there can be no doubt that by this time the rural economy of the church estates in France was in substance that which we know as manorial. Foreign precedents in this as in other matters may have done a great work in England[1110]. All that we are here concerned to show is that there were forces at work which were capable of transmuting a village full of free landholders into a manor full of villeins.

[Church-scot and tithe.]

Besides the rights transferred to it by the king, the church would have other rights at its command which it could employ for the subjection--we use the word in no bad sense--of the peasantry. By the law of God it might claim first-fruits and tenths. The payment known as ciric-sceat, church-scot, is a very obscure matter[1111]. Certainly in laws of the tenth century it seems to be put before us as a general tax or rate, due from all lands, and not merely from those lands over which a church has the lordship. On the other hand, both in earlier and in later documents it seems to have a much less general character. In some of the earlier it looks like a due, we may even say a rent (ecclesiasticus census) paid to a church out of its own lands, while in the later documents, for example in Domesday Book, it appears sporadically and looks like a heavy burden on some lands, a light burden on others. The evidence suggests that the church had attempted and on the whole had failed, despite the help of kings and laws, to make this impost general. That in some districts it was a serious incumbrance we may be sure. On those estates of the church of Worcester to which we have often referred, every hide was bound to pay upon St. Martin's day one horse-load (summa) of the best corn that grew upon it. He who did not pay upon the appointed day incurred the outrageous penalty of paying twelve-fold, and in addition to this a fine was inflicted[1112]. If the bishop often insisted on the letter of this severe rule, he must have reduced many a free ceorl to beggary. It is by no means certain that the duty of paying tithe has not a somewhat similar history. Though in this case the impost became a general burden incumbent on all lands, it may have been a duty of perfect obligation for the subjects of the churches, while as yet for the mass of other landowners it was but a religious duty or even a counsel of perfection. At any rate, this subtraction of a tenth of the gross produce of the earth is no light thing: it is quite capable of debasing many men from landownership to dependent tenancy.

[Jurisdictional rights of the lord.]

Another potent instrument for the subjection of the free landowners would be the jurisdictional rights which passed from the king to the churches and the thegns. At first this transfer would appear as a small matter. The president of a court of free men is changed:--that is all. Where the king's reeve sat, the bishop or the bishop's reeve now sits; fines which went to the royal hoard now go to the minster; but a moot of free men still administers folk-right to the justiciables of the church. However, in course of time the change will have important effects. In the first place, it helps to bind up suit of court with the tenure of land. The suitor goes to the bishop's court because he holds land of which the bishop is the lord. If, as will often be the case, he wishes to escape from the burdensome duty, he will pay an annual sum in lieu thereof, and here is a new rent. Then again all the affairs of the territory are now periodically brought under the bishop's eye; he knows, or his reeves know, all about every one's business and they have countless opportunities of granting favours and therefore of driving bargains. Moreover it is by no means unlikely that the lord will now have something to say about the transfer of land, for it is by no means unlikely that conveyances will be made in court, and that the rod or festuca which serves as a symbol of possession will be handed by the seller to the reeve and by the reeve to the purchaser. We need not regard the conveyance in court as a relic of a time when a village community would have had a word to say if any of its members proposed to assign his share to an outsider. There are many reasons for conveying land in court. We get witnesses there, and no mere mortal witnesses but the testimony of a court which does not die. Then, again, there may be the claims of expectant heirs to be precluded and perhaps they can be precluded by a decree of the court. The seller's kinsfolk can be ordered to assert their rights within some limited time or else to hold their peace for ever after, so that the purchaser will hold the land under the court's ban[1113]. And thus the rod passes through the hands of the president. But 'nothing for nothing' is a good medieval rule. The lord will take a small fine for this land-cóp, this sale of land, and soon it may seem that the purchaser acquires his title to the land rather from the lord than from the vendor[1114].

[The lord and his man's taxes.]

Yet another turn is given to the screw, if we may so speak, when the state and the church begin to hold the lord answerable for taxes which in the last resort should be paid by the tenant[1115]. This, when we call to mind the huge weight of the danegeld, will appear as a matter of the utmost importance. Before the end of the tenth century--this is the picture that we draw for ourselves--large masses of free peasants were in sore straits and were in many ways subject to their lords. Many of them were really holding their tenements by a more or less precarious tenure. They had taken 'loans' from their lord and become bound to pay rents and work continuously on his inland. Others of them may have had ancient ancestral titles which could have been traced back to free settlers and free conquerors; but for centuries past a lord had wielded rights over their land. The king's feorm had become the lord's gafol, and this, supplemented by church-scot and by tithes, may have been turned into gafol and week-work. The time came for a new and heavy tax. This was a crushing burden, and even had the geld been collected from the small folk it would have had the effect of converting many of them from landowners into landborrowers[1116]. But a worse fate befell them. They were so poor that the state could no longer deal with them; it dealt with their lord; he paid for their land. It follows that in the eye of the state their land is his land. Less and less will the national courts and the folk-law recognize their titles; the lord 'defends' this land against all the claims of the state; therefore the state regards it as his. Hence what seems the primary distinction drawn by Domesday Book--that between the soke-man and the villanus. The villanus is not rated to the land-tax. Some men are not rated to the geld because they have but precarious titles; other men have precarious titles because they are not rated to the geld. A wide and a legally definable class is formed of men who hold land and who yet are fast losing the warranty of national law. When once the country is full of lords with sake and soke, a very small change, a very small exhibition of indifference on the part of the state, will deprive the peasants of this warranty and condemn them to hold, not by the law of the land, but by the custom of their lord's court.

[Depression of the free ceorl.]

To this depth of degradation the great mass of the English peasants in the southern and western counties--the villani, bordarii, cotarii of Domesday Book--may perhaps have come before the Norman Conquest. There may have been no courts which would recognize their titles to their land, except the courts of their lords. We are by no means certain that even this was so; but they must fall deeper yet before they will be the 'serf-villeins' of the thirteenth century.

[The slaves.]

However, the conditions which would facilitate such a farther fall had long been prepared, for slavery had been losing some of its harshest features. Of this process we have said something elsewhere[1117]. What the church did for the slave may have been wisely and was humanely done; but what it did for the slave was done to the detriment of the poorer classes of free men. By insisting that the slave has a soul to be saved, that he can be sinned against and can sin, that his marriage is a sacrament, we obliterate the line between person and thing. On the other hand, in the submission of one person to the will of another, a submission which within wide limits is utter and abject, the church saw no harm. Villeinage and monasticism are not quite independent phenomena; even a lawyer could see the analogy between the two[1118]. And a touch of mysticism dignifies slavery:--the bishop of Rome is the serf of the serfs of God; an earl held land of Westminster Abbey 'like a theow[1119].' One of the surest facts that we know of the England of Cnut's time is that the great folk were confounding their free men with their theowmen and that the king forbad them to do this. We see that one of the main lines which has separated the rightless slave from the free ceorl is disappearing, for the lord, as suits his interest best, will treat the same man now as free and now as bond[1120].

[Growth of manors from below.]

We might here speak of the numerous causes for which in a lawful fashion a free man might be reduced into slavery, and were we to do so, should have to notice the criminal law with its extremely heavy tariff of wer and wite and bót. But of this enough for the time has been said elsewhere[1121], and there are many sides of English history at which we can not even glance. However, lest we should be charged with a grave omission, we must explain that the processes which have hitherto come under our notice are far from being in our eyes the only processes that tended towards the creation of manors. We have been thinking of the manors as descending from above (if we may so speak) rather than as growing up from below. The alienation of royal rights over villages and villagers has been our starting point, and it is to this quarter that we are inclined to look for the main source of seignorial power. But, no doubt, within those villages which had no lords--and plenty of such villages there were in 1065--forces were at work which made in the direction of manorialism. They are obscure, for they play among small men whose doings are not recorded. But we have every reason to suppose that in the first half of the eleventh century a fortunate ceorl had many opportunities of amassing land and of thriving at the expense of his thriftless or unlucky neighbours. Probably the ordinary villager was seldom far removed from insolvency: that is to say, one raid of freebooters, one murrain, two or three bad seasons, would rob him of his precious oxen and make him beggar or borrower. The great class of bordarii who in the east of England are subjected to the sokemen has probably been recruited in this fashion[1122]. And so we may see in Cambridgeshire that a man will sometimes have half a hide in one village, a virgate in another, two-thirds of a virgate in a third. He is 'thriving to thegn-right.' Then, again, some prelate or some earl will perhaps obtain the commendation of all the villagers, and his hold over the village will be tightened by a grant of sake and soke, though, if we may draw inferences from Cambridgeshire, this seems to have happened rarely, for the sokemen of a village have often shown a marvellous disagreement among themselves in their selection of lords, and seem to have chosen light-heartedly between the house of Godwin and the house of Leofric as if they were but voting for the yellows or the blues. We fully admit that these forces were doing an important work; but they were doing it slowly and it was not nearly achieved when the Normans came. Nor was it neat work. It tended to produce not the true and compact manerio-villar arrangement, but those loose, dissipated manors which we see sprawling awkwardly over the common fields of the Cambridgeshire townships[1123].

[Sidenote: Theories which connect the English manor with the Roman villa.]

We have been endeavouring to show that the legal, social and economic structure revealed to us by Domesday Book can be accounted for, even though we believe that in the seventh century there was in England a large mass of free landowning ceorls and that many villages were peopled at that time and at later times chiefly by free landowning ceorls and their slaves. We have now to examine the evidence that is supposed to point to a contrary conclusion and to connect the English manor of the eleventh century with the Roman villa of the fifth. Two questions should be distinguished from each other--(1) Have we any proof that during those six centuries, especially during the first three of them, the type of rural economy which we know as 'manorial' was prevalent in England? (2) Have we any proof that the tillers of the soil were for the more part slaves or unfree men? We will move backwards from Domesday Book.

[The Rectitudines.]

In the first place reliance has been placed on the document known as Rectitudines Singularum Personarum[1124]. Of the origin of this we know nothing; we can not say for certain that it is many years older than the Norman Conquest. Apparently it is the statement of one who is concerned in the management of great estates and is desirous of imparting his knowledge to others. It first sets forth the right of the thegn. He is worthy of the right given to him by his book. He must do three things in respect of his land, namely, fyrdfare, burh-bote and bridge-work. From many lands however 'a more ample landright arises at the king's ban': that is to say, the thegn is subject to other burdens, such as making a deer-hedge at the king's hám, providing warships[1125] and sea-ward and head-ward and fyrd-ward, and almsfee and church-scot and many other things. Then we hear of the right of the geneat. It varies from place to place. In some places he must pay rent (land-gafol) and grass-swine yearly, and ride and carry and lead loads, work and support his lord[1126], and reap and mow and hew the deer-hedge and keep it up, build and hedge the burh and make new roads for the tún, pay church-scot and almsfee, keep head-ward and horse-ward, go errands far and near wherever he is directed. Next we hear of the cottier's services. He works one day a week and three days in harvest-time. He ought not to pay rent. He ought to have five acres more or less. He pays hearth-penny on Holy Thursday as every free man should. He 'defends' or 'acquits' his lord's inland when there is a summons for sea-ward or for the king's deer-hedge or the like, as befits him, and pays church-scot at Martinmas. Then we have a long statement as to the services of the gebúr. In some places they are heavy, in others light. On some land he must work two days a week and three days at harvest by way of week-work. Besides this there is rent to be paid in money and kind. There is ploughing to be done and there are boon-works. He has to feed dogs and find bread for the swine-herd. His beasts must lie[1127] in his lord's fold from Martinmas to Easter. On the land where this custom prevails the gebúr receives by way of outfit two oxen and one cow and six sheep and seven sown acres upon his yard-land. After the first year he is to do his services in full and he is to receive his working tools and the furniture for his house. We then hear of the special duties and rights of the bee-keeper, the swine-herd, the follower, the sower, ox-herd, shepherd, beadle, woodward, hayward and so forth.

[Discussion of the Rectitudines.]

Now, according to our reading of this document, there stand below the thegn, but above the serfs (of whom but few words are said[1128]) three classes of men--there is the geneat, there is the gebúr and there is the cotsetla. The boor and the cottier are free men; the cottier pays his hearth-penny, that is his Romescot, his Peter's-penny, on Holy Thursday as every free man does; but both boor and cottier do week-work. On the other hand the geneat does no week-work. He pays a rent, he pays a grass-swine (that is to say he gives a pig or pigs in return for his pasture rights), he rides, he carries, he goes errands, he discharges the forinsec service due from the manor, and he is under a general obligation to do whatever his lord commands. He bears a name which has originally been an honourable name; he is his lord's 'fellow[1129].' His services strikingly resemble those which St. Oswald exacted from his ministri, his equites, his milites[1130]. Almost every word that is said of the geneat is true of those very substantial persons who took land-loans from the church of Worcester. The geneat (who becomes a villanus in the Latin version of our document that was made by a Norman clerk of Henry I.'s reign) is a riding-man, radman, radcniht, with a horse, a very different being from the villanus of the thirteenth century[1131]. On the other hand, in the gebúr of this document we may see the burus, who is also the colibertus of Domesday Book[1132], and he certainly is in a very dependent position, for his lord provides him with cattle, with instruments of husbandry, even with the scanty furniture of his house. We dare not indeed argue from this text that the villanus of Domesday Book does not owe week-work, for the writer who rendered geneat by villanus was quite unable to understand many parts of the document that he was translating[1133]; but when we place the Rectitudines by the side of the survey we can hardly avoid the belief that the extremely dependent gebúr of the former is represented, not by the villanus, but by the burus or colibertus of the latter. However, over and over again the author of the Rectitudines has protested that customs vary. He will lay down no general rule; he does but know what goes on in certain places[1134].

[The Tidenham case.]

In 956 King Eadwig gave to Bath Abbey thirty manses at Tidenham in Gloucestershire[1135]. A cartulary compiled in the twelfth century contains a copy of his gift, and remote from this it contains a statement of the services due from the men of Tidenham. It is possible, but unlikely, that this statement represents the state of affairs that existed at the moment when the minster received the gift; to all appearance it belongs to a later date[1136]. It begins by stating that at Tidenham there are 30 hides, 9 of inland and 21 'gesettes landes,' that is 9 hides of demesne and 21 hides of land set to tenants. Then after an account of the fisheries, which were of importance, it tells us of the services due from the geneat and from the gebúr. The geneat shall work as well on the land as off the land, whichever he is bid, and ride and carry and lead loads and drive droves 'and do many other things.' The gebúr must do week-work, of which some particulars are stated, and he also must pay rent in money and in kind. Here again a well marked line is drawn between the geneat and the gebúr. Here again the geneat, like the cniht or minister of Oswaldslaw, is under a very general obligation of obedience to his lord; but he is a riding man and there is nothing whatever to show that he is habitually employed in agricultural labour upon his lord's demesne. As to the gebúr, he has to work hard enough day by day, and week by week, though of his legal status we are told no word.

[The Stoke case.]

In a Winchester cartulary, 'a cartulary of the lowest possible character,' there stands what purports to be a copy of the charter whereby in the year 900 Edward the Elder gave to the church of Winchester 10 manentes of land 'æt Stoce be Hysseburnan' together with all the men who were thereon at the time of Alfred's death and all the men who were 'æt Hisseburna' at the same period. Edward, we are told, acquired the land 'æt Stoce' in exchange for land 'æt Ceolseldene' and 'æt Sweoresholte [Sparsholt].' At the end of the would-be charter stand the names of its witnesses. Then follows in English (but hardly the English of the year 900) a statement of the services which the ceorls shall do 'to Hysseburnan.' Then follow the boundaries. Then the eschatocol of the charter and the list of witnesses is repeated[1137]. On the face of the copy are three suspicious traits: (1) the modernized language, (2) the repeated eschatocol, (3) the description of the services, for the like is found in no other charter. This is not all. Two other documents in the same cartulary bear on the same transaction. By the first Edward gave to the church of Winchester 50 manentes 'æt Hysseburnan' which he had obtained by an exchange for land 'æt Merchamme[1138].' By the second he gave to the church of Winchester 50 manentes 'ad Hursbourne' and other 10 'ad Stoke[1139].' The more carefully these three documents are examined, the more difficult will the critic find it to acquit the Winchester monks of falsifying their 'books' and improving Edward's gift. Therefore this famous statement about the ceorls' services is not the least suspicious part of a highly suspicious document. It is to this effect:--'From each hiwisc (family or hide), at the autumnal equinox, forty pence and six church mittan of ale and three sesters of loaf-wheat. In their own time they shall plough three acres and sow them with their own seed, and in their own time bring it [the produce of the sown land] to barn. They shall pay three pounds of gafol barley and mow half an acre of gafol-mead in their own time and bring it to the rick; four fothers of split gafol-wood for a shingle-rick in their own time and sixteen yards of gafol-fencing in their own time. And at Easter two ewes with two lambs, but two young sheep may be counted for an old one; and they shall wash and shear sheep in their own time. And every week they shall do what work they are bid, except three weeks, one at Midwinter, one at Easter and the third at the Gang Days.' Here no doubt, as in the account of Tidenham, as in the Rectitudines, we see what may fairly be called the manorial economy. The lord has a village; he has demesne land (inland) which is cultivated for him by the labour of his tenants; these tenants pay gafol in money or in kind; some of them (the geneat of Tidenham, the geneat of the Rectitudines) assist him when called upon to do so; others work steadily from day to day; in many particulars the extent of the work due from them is ascertained; whether they are free men, whether they are bound to the soil, whether the national courts will protect them in their tenure, whether they are slaves, we are not told.

[Inferences from these cases.]

That such an arrangement was common in the eleventh century we know; a solitary instance of it comes to us professedly from the first year of the tenth, and certainly from a cartulary that is full of lies. To draw general inferences from a few such instances would be rash. What should we believe of 'the English village of the eleventh century' if the one village of which we had any knowledge was Orwell in Cambridgeshire[1140]? What should we believe of 'the English village of the thirteenth century' if our only example was a village on the ancient demesne? The traces of a manorial economy that have been discovered in yet remoter times are few, slight and dubious. A passage in the laws of Ine[1141] seems to prove that there were men who had let out small quantities of land, 'a yard or more,' to cultivators at rents and who were wrongfully endeavouring to get from their lessees work as well as gafol. The same law may prove the highly probable proposition that some men had taken 'loans' of manses and were paying for them, not only by gafol, but by work done on the lord's land. That already in Ine's day there were many free men who were needy and had lords above them, that already the state was beginning to consecrate the relation between lord and man as a security for the peace and a protection against crime is undoubted[1142]. But this does not bring us very near to the Roman villa. Nor shall we see a villa wherever the dooms or the land-books make mention of a hám or a tún, for the meanest ceorl may have a tún and will probably have a home of his own[1143].

[The villa and the vicus.]

It is said that the England of Bede's day was full of villae and that Bede calls the same place now villa and now vicus[1144]. But before we enter on any argument about the use of such words, we ought first to remember that neither Bede nor the scribes of the land-books were trained philologists. London is a villa[1145], but it is also a civitas, urbs, oppidum, vicus, a wíc, a tún, a burh, and a port. When we see such words as these used promiscuously we must lay but little stress upon the occurrence of a particular term in a particular case. Suppose for a moment that in England there were many villages full of free landholders: what should they be called in Latin? They should, it is replied, be called vici and they should not be called villae, for a villa is an estate. But it is part of the case of those who have used this argument that at the time of the barbarian invasions the Roman world was full of villae, so full that every or almost every vicus was situated on and formed part of a villa[1146]. We are therefore exacting a good deal from Bede, from a man who learnt his Latin in school, if we require him to be ever mindful of this nice distinction. We are saying to him: 'True it is that a knot of neighbouring houses with the appurtenant lands is habitually called a villa; but then this word introduces the notion of ownership; the villa is an unit in a system of property law, and, if your village is not also an estate, a praedium, then you should call it vicus and not villa.' To this we must add that, while the word villa did not until after the Norman Conquest force its way into English speech, the word vicus became an English word at a very early period[1147]. It became our word wick and it became part of a very large number of place-names[1148]. The Domesday surveyors found herdwicks and berewicks in many parts of the country[1149]. Moreover we can see that in the Latin documents villa is used in the loosest manner. London is a villa; but a single house, a single 'haw,' in the city of Canterbury or the city of Rochester is a villa[1150].

[Notices of manors in the charters.]

If we carefully attend to the wording of the land-books, we shall find the manorial economy far more visible in the later than in the earlier of them. The Confessor gives to Westminster 'ða cotlife Perscore and Dorhurste' with all their lands and all their berewicks[1151]. He gives the cotlif Eversley and all things of right belonging thereto, with church and mill, with wood and field, with meadow and heath, with water and with moor[1152]. From 998 we have a gift of a 'heafod-botl,' a capital mansion, we may say, and its appurtenances[1153]. In earlier times we may sometimes find that the subject matter of the royal gift is spoken of as forming a single unit; it is a villa, or it is a vicus. But rarely is the thing that is given called a villa except when the thing that is given is just a single hide[1154]. If a charter freely disposes of several villae, meaning thereby villages, we shall probably find some other reasons for assigning that charter, whatever date it may bear, to the eleventh, the twelfth or a yet later century[1155]. Sometimes in old books the king will say that he is giving a vicus, a vicus of five or eight or ten tributarii[1156]. Much more frequently he will not speak thus; he will not speak as though the subject matter of his gift had a physical unity and individuality. 'I give,' he will say, 'so many manentes, tributarii, or casati in the place known as X,' or 'I give a certain part of my land, to wit, that of so many manentes, tributarii, or casati at the spot which men call Y.' Such language does not suggest that the manses thus given are subservient to one dominant and dominical manse or manor; it is very unlike the language of the twelfth century[1157]. Such words as fundus and praedium are conspicuously absent, and ager usually means but a small piece of land, an acre. Foreign precedents would have suggested that when an estate was to be conveyed it should be conveyed cum servis et ancillis, or cum mancipiis et accolabus; such clauses are rare in our English land-books[1158].

[The mansa and the manens.]

But, it will be said, at all events the king is giving persons, men, as well as land; he is giving manentes, casati, tributarii. What is more these are foreign words and they describe the 'semi-servile' occupants of the soil. Now it is true that sometimes he gives manentes, casati, tributarii, though more often he gives either so many manses (mansas), or 'the land of so many manentes, casati, tributarii,' while in Kent he gives plough-lands or sullungs. But we think it plain that in England these Latin words were used simply to describe the extent, or rather the rateable extent, of land, without much reference to the number or the quality of its occupants. The terra unius manentis, even the unus casatus when that is the subject of a conveyance, is like Bede's terra unius familiae, the unit known to Englishmen as the hiwisc, or hide[1159]. Hence it is that reference is so often made to repute and estimation. 'I give,' says Egbert, 'a certain portion of land to the amount, as I estimate, of five casati,' or (it may be) 'of twenty manentes[1160].' Nothing can be easier than to count whether there be four, five, or six 'semi-servile' households on a given piece of land. Far easier would it be to do this than to do what is habitually done, namely, to set forth the boundaries of the land with laborious precision. But there is already an element of estimation, of appreciation, in these units. Already they are units in a system of taxation. Hence also it is that so very frequently what the king gives is just exactly five, or some multiple of five, of these units[1161]. Rating is a rough process; five and ten are pleasant numbers.

[The hide.]

But against the argument which would see in every conveyance of 'five manentes' or of 'the land of five casati' a conveyance of five semi-servile households with their land we have another objection to urge. Here we will state it briefly; a fuller statement would take us far away from our present theme. If the land-books of the churches are to lead up to Domesday Book, the unit conveyed as terra unius manentis (casati, tributarii) is a hide with some 120 acres of arable land, the land appropriate to a plough-team of eight oxen. Had the semi-servile manens as a general rule 120 arable acres, a plough-team of eight oxen? We do not believe it, and those who have most strongly insisted on the servility or 'semi-servility' of the tillers of the soil, do not believe it. They would give the gebúr but a quarter of a hide and but two beasts of the plough. That being so, it should be common ground that the terra unius manentis (casati, tributarii) can not be construed as 'the land occupied by one semi-servile tenant.' An explanation of the fact that land is conveyed by reference to units so large as the hide of 120 acres and that these units are spoken of as though each household would normally have one of them must be sought elsewhere; we can not here pause to find it. But in any case these foreign terms should give us little trouble. When he hears such words as manens, casatus, tributarius, the man who has lived in Gaul may hear some undertone of servility or 'semi-servility.' We do not discuss this matter; it may be so. But look at the words themselves, what do they primarily mean? A manens is one who dwells upon land, a casatus is one to whom a casa has been allotted, a tributarius pays tributum; the free English landowner pays a tributum to the king[1162]. We must make the best we can of a foreign, an inappropriate tongue, and the best that we make is often very bad, especially when we have a taste for fine writing. And so England is full of villas which are Roman and satraps who, no doubt, are Persian.

[The strip-holding and the villa.]

And whence, we must ask, comes that system of intermixed 'strip-holding' that we find in our English fields? Who laid out those fields? The obvious answer is that they were laid out by men who would sacrifice economy and efficiency at the shrine of equality. Each manse is to have the same number of strips; the strips of one manse must be neither better nor worse than those of its neighbour and therefore must be scattered abroad over the whole territory of the village. That this system was not invented by men who owned large continuous tracts is plain. No such owner would for one moment dream of cutting up his land in this ridiculous fashion, and of reserving for his own manse, not a ring-fenced demesne, but strips lying here and there, 'hide-meal and acre-meal' among the strips of his serfs. That is not the theory. No one supposes that a Roman landowner whose hands were free allowed the soil of his villa to be parcelled out in accordance with this wasteful, cumbrous, barbarous plan. So his hands must not be free; the soil of which he becomes the owner must already be plotted out in strips, and these strips must be so tightly bound up into manses, that he scruples to overturn an existing arrangement, and contents himself with appropriating a few of the manses for his own use and compelling the occupants of the others to labour for him and pay him rents. In this there is nothing impossible; but we have only deferred, not solved the problem. Who laid out our English fields and tied the strips into manses? That this work was done by the Britons before they were brought under the Roman yoke does not seem very probable. Celtic rural economy, whenever it has had a chance of unfettered development, has made for results far other than those that are recorded by the larger half of the map of England. If throughout England the Romans found so tough a system of intermixed manses that, despite all its absurdities, they could not but spare it, then the Britons who dwelt in the land that was to be English were many centuries in advance of the Britons who dwelt in the land that was to be Welsh. To eke out this hypothesis another must be introduced. The Teutonic invaders of Britain must be brought from some manorialized province. So, after all, the model of the English field may have been 'made in Germany.' Somehow or another it was made in South Germany by semi-servile people, whose semi-servility was such a half-and-half affair that they could not be prevented from sacrificing every interest of their lords at the shrine of equality[1163].

[The lords and the strips.]

We are far from saying that wherever there is strip-holding, there liberty and equality have once reigned[1164]. It is very possible that where a barbarian chieftain obtained a ring-fenced allotment of conquered soil, he sometimes divided it into scattered strips which he parcelled out among his unfree dependants. But if he did this, he did it because his only idea of agriculture was derived from a village formed by men who were free and equal. The maintenance of a system of intermixed strip-holding may be due to seignorial power, and a great deal of the rigidity of the agrarian arrangements that we see in the England of the thirteenth century may be due to the same cause. Seignorial power was not, at least in origin, absolute ownership. It had to make the best it could of an existing system. For the lord's purposes that system was at its best when it was rigid and no tenement was partible. But assuredly this plan was not originally invented by great proprietors who were seeking to get the most they could out of their land, their slaves and their capital.

[The ceorl and the slave.]

That we have not been denying the existence of slavery will be plain. Indeed we may strongly suspect that the men who parcelled out our fields were for the more part slave-owners, though slave-owners in a very small way. To say nothing of Welshmen, there was quite enough inter-tribal warfare to supply the ceorl with a captive. But it was not for the sake of slaves or serfs or 'semi-servile' folk that the system of intermixed strips was introduced.

[The condition of the Danelaw.]

Lastly, the theory which would derive the English manor from the Roman villa must face the grave problem presented to it by the account which Domesday Book, when speaking of the Confessor's day, gives of the eastern and northern counties, of a large quarter of all England, and of just that part of England which was populous. We see swarms of men who are free men but who are subject, they and their land, to various modes and degrees of seignorial power. The modes are many, the degrees are gentle. Personal, tenurial, justiciary threads are woven into a web that bewilders us. Here we see the work of commendation, there the work of the land-loan, and there again what comes of grants of sake and soke. We see the formation of manors taking place under our eyes, and as yet the process is by no means perfect. In village after village there is nothing that our economic historians would consent to call a manor. Now, no doubt, the difference between the east and the west is, at least in part, due to Danish invasions and Danish settlements. But how shall we picture to ourselves the action of the Danes? Is it to be supposed that they found the Anglo-Roman manor-villa a prevalent and prosperous institution, that they destroyed it and put something else in its place, put in its place the village of free peasants who could 'go with their land' to what lord they pleased? If so, then we have to face the question why these heathen Danes acted in a manner so different from that in which their predecessors, the heathen Angles and Saxons, had acted. Surely one part of the explanation is that the inswarming barbarians checked the manorializing process that was steadily at work in Wessex and Mercia. We do not say that this is the whole explanation. We have seen how free were many of the Cambridgeshire villages and have little reason to believe that they had been settled by Danes[1165]. The west country is the country to which we shall naturally look for the most abundant traces of the Wealh theow. There it is that we find numerous servi, and there that we find rather trevs than villages. But also we have hardly a single land-book of early date which deals with any part of the territory that became the Danelaw. Many a book the Danes may have burnt when they sacked the monasteries. They sacked the monasteries, burnt the books and freed the land. But still we may doubt whether the practice of booking lands to the churches had gone far in East Anglia and the adjacent shires when they were once more overwhelmed by barbarism. No doubt in course of time the churches of the east became rich: Ely and St Edmunds, Peterborough and Ramsey, Croyland and Thorney. But, even when supplemented by legend and forgery, their titles to wide territories can seldom be compared for antiquity to the titles that might have been pleaded by the churches of Kent and Wessex and the Severn Valley. Richly endowed churches mean a subjected peasantry. And thus we may say of the Danes that if in a certain sense they freed the districts which they conquered, they in the same sense enslaved the rest of England. Year by year Wessex and Mercia had to strain every nerve in order to repel the pagans, to fit out fleets, build burgs and keep armies always in the field. The peasant must in the end bear the cost of this exhausting struggle. Meanwhile in the north and the east the process that makes manors has been interrupted; it must be begun once more. It was accomplished by men some of whom had Scandinavian blood in their veins, but who were not heathens, not barbarians: it was accomplished by Normans steeped in Frankish feudalism.

FOOTNOTES:

[1101] K. 313 (ii. 110); T. 129; B. ii. 172.

[1102] In many cases the one night's farm is reckoned at £100 or thereabouts; Round, Feudal England, 112.

[1103] K. 477 (ii. 354); T. 509.

[1104] Vinogradoff, Villainage, 301.

[1105] Even T. R. W. and in a thoroughly manorial county such as Hampshire we may find a village in which the lord has no demesne. See e.g. D. B. i. 41 b, Alwarestoch.

[1106] Hist. Eng. Law, ii. 315

[1107] Ine, 67. See Schmid's note.

[1108] See above, p. 15.

[1109] See Meitzen, Siedelung und Agrarwesen der Germanen, ii. 97 ff.

[1110] Stubbs, Const. Hist. i. 223.

[1111] The subject is treated at length by Kemble, Saxons, ii. 490 and App. D, and Schmid, p. 545.

[1112] D. B. i. 174. Compare Ine, 4; Æthelr. VIII. 11; Cnut, I. 10.

[1113] Hist. Eng. Law, ii. 95.

[1114] Æthelred, III. 3; Schmid, App. II. 67 and Schmid, Glossar, s. v. land-ceáp.

[1115] See above, pp. 55, 122, 125.

[1116] See above, p. 6. In a charter of Æthelred, K. 689 (iii. 284), Abp. Sigeric, the reputed inventor of the danegeld, is represented as pledging a village of thirty manses in order that he may pay the money demanded by the pirates. He thus raises 90 pounds of purest silver and 200 mancuses of purest gold. If the mancus was the eighth of a pound (Schmid, p. 595) we have 90 pounds of silver and 25 of gold, or in all perhaps £390. The whole danegeld of Kent under Henry II. was less than £106. For other transactions of a similar kind, see Crawford Charters, 76.

[1117] See above, p. 27.

[1118] Hist. Eng. Law, i. p. 416.

[1119] K. 1327 (iv. 190): 'swa full and swa forð swa Sihtric eorll of ðan ministre þeowlic it heold.'

[1120] Cnut, II. 20.

[1121] Hist. Eng. Law, ii. p. 458.

[1122] Chron. Petrob. 166: 'Sunt etiam in eadem scira 15 undersetes qui nullum servicium faciunt nisi husbondis in quorum terra sedent.'

[1123] See above, p. 136.

[1124] Schmid, App. III. p. 370; Seebohm, English Village Community, p. 129. See also Liebermann's article in Anglia, ix. 251, where the Gerefa, which seems to be a second part of this document, is printed.

[1125] We here adopt Schmid's conjecture: 'and scorp to friðscipe [corr. fyrdscipe].'

[1126] Ibid.: 'and hlaford feormian,' and supply a feorm (firma) for his lord.

[1127] The text says that he must lie at his lord's fold; but probably it refers to the soca faldae. See above, p. 76.

[1128] Of the serfs we hear (c. 8, 9) what they are to receive, but not what they ought to do; their services are unlimited.

[1129] Schmid, p. 596: Maurer, K. U. ii. 405.

[1130] See above, p. 305, also Maurer, K. U. ii. 406.

[1131] He is to 'work' for his lord; but then see how Oswald speaks of his knights and radmen: 'semper illius ... dominatui et voluntati ... cum omni humilitate et subiectione subditi fiant secundum ipsius voluntatem.' Cf. D. B. i. 172 b: 'deserviebat sicut episcopus volebat' ... 'tenuit ad servitium quod episcopus voluit.' The translator who turned him into a villanus was capable of turning the king's geneat of Ine's law into a colonus, a colonus with a wergild of 1200 shillings! See Schmid, p. 29.

[1132] See above, p. 36.

[1133] See e.g. cap. i., where it is pretty clear that he can not translate scorp. So in the Latin version of Edgar II. c. 1 he renders geneatland by terra villanorum. But about such a matter as this the testimony of the Quadripartitus is of no value. See Liebermann, Gerefa, Anglia, ix. 258.

[1134] Mr Seebohm, p. 130, commits what seems to me the mistake of saying that the cottiers and boors are 'various classes of geneats.' To my thinking a great contrast is drawn between the geneat and the gebúr both in this document and in the account of Tidenham. So in Edgar II. c. 1 the contrast is between land which the great man has in hand and land which he has let to his 'fellows,' his equites and ministri. See Konrad Maurer, K. U. ii. 405-6. Such words as gebúr and burus are obviously very loose words and it is likely that many a man who answered to the description of the gebúr given by the Rectitudines appears in Domesday Book, which in general cares only about fiscal distinctions, as a villanus or bordarius. But we have clear proof that the surveyors saw a class of buri ( = coliberti) who were distinct from the ordinary villani. See above, p. 36.

[1135] K. 452 (ii. 327). See also Two Chartularies of Bath Abbey (Somerset Record Society), pp. 5, 18, 19.

[1136] K. iii. 449; E. 375: Seebohm, 148. Both documents come from MS. C.C.C. Camb. cxi. The conveyance is on f. 57, the statement of services on f. 73. The statement of services immediately precedes the lease of Tidenham to Stigand, K. 822 (iv. 171). Thus we have really better reason for referring that statement to the very eve of the Norman Conquest than to 956. See also Kemble, Saxons, i. 321, and Maurer, K. U. ii. 406.

[1137] K. 1077 (v. 146; iv. 306); T. 143; Kemble, Saxons, i. 319; Seebohm, 160. But the form of the instrument as given in the Codex Wintoniensis is best seen in B. ii. 240. We have quoted above the estimate of this Codex formed by Mr Haddan and Dr Stubbs (Councils, iii. 638).

[1138] B. ii. 238.

[1139] B. ii. 239.

[1140] See above, p. 129.

[1141] Ine, 67.

[1142] Ine, 39. The man who leaves his lord (not his lord's land, but his lord) without license, or steals himself away into another shire, is to pay 60 shillings (no trivial sum) to his lord.

[1143] Surely the law, Hloth. and Ead. c. 15, which begins 'If a man receive a guest three nights in his own home (an his agenum hame)' is not directed only against the lords of manors. See Meitzen, Siedelung und Agrarwesen, ii. 123.

[1144] Ashley, Translation of Fustel de Coulanges, Origin of Property, p. xvi.

[1145] K. 220 (i. 280): 'ad regalem villam Lundoniae perveniens.'

[1146] Fustel de Coulanges, L'Alleu, ch. vi. There is much to be said on the other side; see Flach, Les origines de l'ancienne France, ii. pp. 47-62. As to the villa of the Lex Salica, see Blumenstok, Entstehung des deutschen Immobiliareigenthums, i. 219 ff.

[1147] The suggestion that villa appears in some of our place-names as the termination -well runs counter, so Mr Stevenson tells me, to rules of phonology.

[1148] See Bosworth's Dictionary; Kemble, Cod. Dipl. iii. p. xli. In the translation of St. Mark viii. 23, 26 both wíc and tun are used as equivalents for vicus:--'eduxit eum extra vicum ... et si in vicum introieris' = 'and lædde hine butan þa wic ... and ðeah þu on tun ga.' Even in France the word vicus becomes part of numerous place-names: see Flach, op. cit. i. p. 53.

[1149] There is something curious about the use made of wick. It is often used to distinguish a hamlet or small cluster of houses separate from the main village. Thus in the parish of X we shall find X-wick. The berewicks and herdwicks of D. B. (see above, p. 114) seem to be small clusters. On the other hand London is a wíc; Hloth. and Ead. 16.

[1150] K. 1041 (v. 88): 'in Dorobernia etiam civitate unam villam donabo ad quam pertinet quinque iugera terrae et duo prata.' K. 276 (ii. 57): 'dabo unam villam, quod nos Saxonice an haga dicimus.' K. 259 (ii. 26): 'villam unam ab orientale parte muri Doroverniae civitatis.'

[1151] K. 829 (iv. 191).

[1152] K. 845 (iv. 204). In a passage which has been interpolated into one copy of the A.-S. Chronicle (Thorpe, p. 220) we read 'And se biscop ... bohte þa feala cotlif æt se king.'

[1153] Crawford Charters, pp. 22, 125; K. 1293 (vi. 138).

[1154] Thus K. 109 (i. 133): 'villam unam ... quae iam ad Quenegatum urbis Dorovernensis in foro posita est.' It is not denied that in some quite early charters a king gives a villa or villula, e.g. K. 209 (i. 264): 'Heallingan cum villulis suis'; see also K. 140 (i. 169), in which villula and viculus are used as synonyms.

[1155] A good example is that abominable forgery K. 984 (v. 2), Wulfhere's charter for Peterborough.

[1156] For example, K. 117-8-20 (i. 144-7).

[1157] One of the earliest instances of what looks like manorial organization will be found in K. 201 (i. 253); B. i. 485. In 814 Cenwulf gives to the Abp. of Canterbury a plough-land: 'et hoc aratrum cum omnibus utensilibus bonis ad mansionem in grafon æa [Graveney] æternaliter concessum est.'

[1158] A.D. 880, K. 311 (ii. 107): 'Insuper etiam huic donationi in augmentum sex homines, qui prius pertinebant ad villam regiam in Beonsinctune, cum omni prole stirpeque eorum ad eandem conscripsimus aecclesiam.' A.D. 889, K. 315 (ii. 117): 'cum hominibus ad illam pertinentibus.' A.D. 962, K. 1239 (vi. 49): 'vineam ... cum vinitoribus.' In late documents penned in English it is common to convey land 'with meat and with man.' Instances are collected in Crawford Charters, 127.

[1159] Therefore we sometimes meet with the form cassata, while manens is treated as a feminine word; K. i. 301; B. i. 573: 'has x. manentes ... dividendas dimisit.' So Asser (ed. Camden, p. 4) says that Æthelwulf ordered that one poor man should be fed and clothed 'per omnem hereditariam terram suam semper in x. manentibus.'

[1160] K. 1033 (v. 73): 'aliquam portionem terrae ... in modum videlicet ut autumo v. cassatorum.' K. 1308 (v. 83): 'aliquam portionem terrae ... in modum videlicet ut autumo xx. manentium.' K. 565 (iii. 64): 'quoddam ruris clima sub aestimatione decem cassatorum.' K. 573 (iii. 87): 'ruris quandam particulam, denis ab accolis aestimatam mansiunculis.' K. 602 (iii. 146): 'quoddam rus x. videlicet mansarum quantitate taxatum.'

[1161] Let us open the Cod. Dipl. at the beginning of Edmund's reign (ii. 218). The number of manses given in twenty-five consecutive charters is as follows: 10, 20, 10, 10, 9, 10, 15, 7, 8, 20, 10, 3, 5, 20, 30, 3, 6, 5, 3, 7, 20, 20, 5, 8, 5.

[1162] It seems almost necessary to protest that to-day our landowners are not semi-servile occupants of the soil, though they pay land taxes, house taxes, income taxes and rates innumerable.

[1163] I can not but think that Fustel de Coulanges knew his business thoroughly well, and that if the German is to be taught his proper and insignificant place, the less that is said of intermixed 'strip-holding' the better, though to ignore it utterly was, even in France, a bold course.

[1164] Meitzen, op. cit. i. 431-41.

[1165] See above, p. 139.

§ 6. The Village Community.

[The village community.]

We have argued for an England in which there were many free villages. It remains for us to say a word of the doctrines which would fill England with free landowning village communities. Here we enter a misty region where arguments suggested by what are thought to be 'survivals' and inferences drawn from other climes or other ages take the place of documents. We are among guesses and little has as yet been proved.

[The popular theory.]

A popular theory teaches us that land belonged to communities before it belonged to individuals. This theory has the great merit of being vague and elastic; but, as it seems to think itself precise, and probably owes some of its popularity to its pretence of precision, we feel it our duty to point out to it its real merit, its vague elasticity.

[Co-ownership and ownership by corporations.]

It apparently attributes the ownership of land to communities. It contrasts communities with individuals. In so doing it seems to hint, and yet to be afraid of saying, that land was owned by corporations before it was owned by men. The hesitation we can understand. No one who has paid any attention to the history of law is likely to maintain with a grave face that the ownership of land was attributed to fictitious persons before it was attributed to men. But if we abandon ownership by corporations and place in its stead co-ownership, then we seem to be making an unfortunate use of words if we say that land belonged to communities before it belonged to individuals. Co-ownership is ownership by individuals. When at the present day an English landowner dies and his land descends to his ten daughters, it is owned by individuals, by ten individuals. If each of these ten ladies died intestate leaving ten daughters, the land would still be owned by individuals, by a hundred individuals.

['Communities' as owners.]

The distinction that modern law draws between the landowning corporation and the group of co-owners is as sharp as any distinction can be. It will be daily brought home to any one who takes an active share in the management of the affairs of a corporation, for example, a small college which has a master, six fellows and eight scholars. A conveyance of land to the college and a conveyance of land to these fifteen men would have utterly different effects. A corporation may be deep in debt while none of its members owes a farthing. Now we may suspect, and not without warrant, that in a remote past these two very different notions, namely that of land owned by a corporation and that of land owned by a group of co-owners were intimately blent in some much vaguer notion that was neither exactly the one nor exactly the other. We may suspect that could we examine the conduct of certain men who lived long ago we should be sorely puzzled to say whether they were behaving as the co-owners of a tract of land or as the members of a corporation which was its owner. But to fashion for ourselves any clear and stable notion of a tertium quid that is neither corporate ownership nor co-ownership, but partly the one and partly the other, seems impossible[1166]. Therefore if, in accordance with the popular theory, we attribute the ownership of lands to 'communities,' we ought to add that we do not attribute it to corporations and that we are fully aware that co-ownership can not be sharply contrasted with ownership by individuals.

[Possession and ownership.]

Also since we are apt to fall into the trick of talking about possession when we mean ownership or proprietary right, we need not perhaps ask pardon for the remark that land owned by a group of three joint tenants may be possessed in many different ways. The three may be jointly possessing the whole; each may be severally possessing a physically divided third; the whole may be possessed by one of them or by some fourth person; the possession may be rightful or wrongful.

But there is a graver question that must be raised. When we say that land belonged to communities before it belonged to individuals, are we really speaking of ownership or of something else?

[Ownership and governmental power.]

At the present day no two legal ideas seem more distinct from each other than that of governmental power and that of proprietary right. The 'sovereign' of Great Britain (be the sovereignty where it may) is not the owner of Great Britain, and if we still say that all land is 'held of' the king, we know that the abolition of this antique dogma, this caput mortuum, might be easily accomplished without any perceptible revolution in the practical rules of English law. A landowner in the United States does not 'hold of' the State or the people or the government of the State. The 'eminent domain' of the State is neither ownership nor any mode of ownership. Further, we conceive that the sovereign person or sovereign body can, without claiming any ownership in the soil, place many restrictions on the use that an owner may make of his land. A law may prohibit owners from building on certain lands: those lands are still their lands. Again, the supposed law may be not a negative but a positive rule; it may require that the owners of certain lands shall build upon them, or shall till them, or shall keep them as pasture[1167]: still neither state nor sovereign will be owner of those lands or have any proprietary interest in them. Our law may subject certain lands to a land-tax to be paid to the state in money, or to a tithe to be paid to the church in kind, but the state will not and the church will not be part-owner of those lands. Our state may habitually expropriate owners, may take their lands from them because they are felons or because their lands are wanted for the construction of railways. We may conceive it expropriating owners who have done no wrong and yet are to have no compensation; but until the expropriation takes place the state does not own the land. As with land, so with chattels. The owner of a cart may find that it is impressed for the purpose of military transport[1168] and yet the cart is his and not the state's.

[Ownership and the powers of subordinate governors.]

Similar powers may be exercised by persons or bodies that are not sovereign, for example, by the governor of a province, by a county council or a municipal corporation. Suppose that the owners of land situate within a certain borough are prohibited by a by-law from placing on their soil any buildings the plans of which have not been approved by the town council. Carry this supposition further:--suppose that the town council is a 'folk-moot' which every inhabitant of the borough may attend. Still, according to our thinking, there would here be no communal ownership and no division of ownership between individuals and a corporation. If we thought it well to say that in such a case the community would have some kind of 'eminent domain' over the land of individuals, we should have to add that this kind of eminent domain was not a proprietary right, but merely governmental power, a power of making general rules and issuing particular commands. Nor would the case be altered if the expressed object of such rules and commands was the interest, it may even be the pecuniary interest, of the men of the town. The erection of buildings may be controlled in order that the town may be wholesome and sightly, or we may conceive that landowners in the suburbs are compelled to keep their land as market-gardens or as dairy-forms in order that vegetables or milk may be cheap:--for all this the town council or community of townsfolk would have no property in the land.

[Evolution of sovereignty and ownership.]

But though this be so, we can not doubt that could we trace back these ideas to their origin, we should come to a time when they were hardly distinct from each other. The language of our medieval law tells us that this is so. The one word dominium has to cover both proprietary rights and many kinds of political power; it stands for ownership, lordship, sovereignty, suzerainty. The power that Edward I. wields over all England, the power that he claims over all Scotland, all Gascony, the right that he has in his palace of Westminster, the right that he has in his war-horse, all these are but modes of dominium. Then we imagine a barbarous horde invading a country, putting its inhabitants to the sword and defending it against all comers. Doubtless in some sort the land is its land. But in what sort? In the sort in which Queen Victoria or the British nation has lands in every quarter of the globe, the sort in which all France belongs to the French Republic, or the sort in which Blackacre is the land of John Styles? Have the barbarians themselves answered this question? Have they asked it[1169]?

[Communal ownership as a stage.]

Now if we are going to confuse sovereignty with ownership, imperium with dominium, political power with proprietary right, why then let our socialists and collectivists cease their striving and sing Te Deum. Already their ideal must be attained. Every inch of the soil of France, to name one instance, 'belongs' to the French Republic. But, if we would not be guilty of this confusion, then we must be very careful before we assent to the proposition that in the normal course of history (if indeed in such a context history can be said to have a normal course) the ownership of land by communities appears before the ownership of land by individuals. Even if we put aside all such criticisms as would be legal quibbles in the eyes of impatient theorists, and refuse to say whether the 'community' is a mass of men, an ideal person or tertium quid, we still are likely to find that the anthropologists will be against us. We are now told by one of the acutest of explorers that, if we leave out of account as no true case of ownership the sort of inchoate sovereignty which an independent tribe of hunters may exercise over a piece of the world's surface, 'ownership of land by individuals' is to be found at a much lower grade in the scale of civilization than that at which 'communal ownership' makes its first appearance[1170]. Communal ownership, it is said, is not seen until that stage is reached at which the power of the chieftain is already a considerable force and the work of centralization is progressing. With these inductions we do not meddle; but if the anthropologist will concede to the historian that he need not start from communalism as from a necessary and primitive datum, a large room will be open for our guesses when we speculate about the doings of a race of barbarians who have come into contact with Roman ideas. Even had our anthropologists at their command materials that would justify them in prescribing a normal programme for the human race and in decreeing that every independent portion of mankind must, if it is to move at all, move through one fated series of stages which may be designated as Stage A, Stage B, Stage C and so forth, we still should have to face the fact that the rapidly progressive groups have been just those which have not been independent, which have not worked out their own salvation, but have appropriated alien ideas and have thus been enabled, for anything that we can tell, to leap from Stage A to Stage X without passing through any intermediate stages. Our Anglo-Saxon ancestors did not arrive at the alphabet, or at the Nicene Creed, by traversing a long series of 'stages'; they leapt to the one and to the other.

[A normal sequence of stages.]

But in truth we are learning that the attempt to construct a normal programme for all portions of mankind is idle and unscientific. For one thing, the number of such portions that we can with any plausibility treat as independent is very small. For another, such is the complexity of human affairs and such their interdependence, that we can not hope for scientific laws which will formulate a sequence of stages in any one province of man's activity. We can not, for instance, find a law which deals only with political and neglects proprietary arrangements, or a law which deals only with property and neglects religion. So soon as we penetrate below the surface, each of the cases whence we would induce our law begins to look extremely unique, and we shall hesitate long before we fill up the blanks that occur in the history of one nation by institutions and processes that have been observed in some other quarter. If we are in haste to drive the men of every race past all the known 'stages,' if we force our reluctant forefathers through agnatic gentes and house-communities and the rest of it, our normal programme for the human race is like to become a grotesque assortment of odds and ends.

[Was land owned by village communities?]

It is an interesting question whether in the history of our own people we ought to suppose any definite 'stage' intermediate between the introduction of steady agriculture and the ownership of land by individuals. To say the least, we have no proof that among the Germans the land was continuously tilled before it was owned by individuals or by those small groups that constituted the households. This seems to be so whether we have regard to the country in which the Germans had once lived as nomads or to those Celtic and Roman lands which they subdued. To Gaul and to Britain they seem to have brought with them the idea that the cultivable land should be allotted in severalty. In some cases they fitted themselves into the agrarian framework that they found; in other cases they formed villages closely resembling those that they had left behind them in their older home. But to all appearance, even in that older home, so soon as the village was formed and had ploughed lands around it, the strips into which those fields were divided were owned in severalty by the householders of the village. Great pains had been taken to make the division equitable; each householder was to have strips equal in number and in value, and to secure equivalence each was to have a strip in every part of the arable territory. But our evidence, though it may point to some co-operation in agriculture, does not point to a communistic division of the fruits[1171]. Nor does it point to a time when a village council or a majority of villagers conceived that it had power to re-allot the arable strips at regular or irregular intervals[1172]. On the contrary, the individual's hold upon his strips developed very rapidly into an inheritable and partible ownership. No doubt this ownership grew more intense as time went on. It is a common remark that during yet recent ages the ownership of land that is known to our law has been growing more intense. This is true and patent enough; the landowner has gained powers of alienation that his predecessors did not enjoy. Possibly the only ownership of land that was known to the Lex Salica was inalienable and could be inherited only by sons of the dead owner. Then again, in old days a trespass that did no harm would have been no trespass. 'Nominal damages' are no primitive institution, and for a long time a man may have had no action if strange cattle browsed over land on which no crop of corn was ripening[1173]. But this growing intensity of ownership may be seen also in the case of movable goods. Indeed there is a sense in which English law may be said to have known a full ownership of land long ages before it knew a full ownership of chattels[1174]. What, however, we are concerned to observe is that the German village community does not seem to have resisted this development of ownership or set up for itself any antagonistic proprietary claim. It sought no more as regards the arable fields than a certain power of regulating their culture, and in old times the Flurzwang, the customary rotation of crop and fallow, must have appeared less as the outcome of human ordinance than as an unalterable arrangement established by the nature of things in general and of acre strips in particular[1175].

[Sidenote: Meadows, pasture and wood.]

Thus, so far back as we can see, the German village had a solid core of individualism. There were, however, lands which in a certain sense belonged to it and which were not allotted for good and all among its various members. For one thing, the meadows were often subjected to a more communal scheme. In the later middle ages we may see them annually redistributed by rotation or by lot among the owners of the arable. The meadows, which must be sharply distinguished from the pasture, were few, and, as we may see from Domesday and other records, they were exceedingly valuable. Probably their great but varying value stood in the way of any permanent partition that would have seemed equitable. Still they were allotted annually and the right to an allotment 'ran with' the house and the arable strips. But again, there were woods and pastures. If we must at once find an owner for this Almende, we may be inclined to place the ownership in a village community, though not without remembering that if this community may develop into a land-owning corporation, it may develop into a group of co-owners. But in all likelihood the question as to the whereabouts of ownership might go unanswered and unasked for a long time. Rights of user exercisable over these woods and pastures were attached to the ownership of the houses and the arable strips, and such 'rights of common' may take that acutely individualistic form which they seem to have taken in the England of the thirteenth century. The freeholder of 'ancient arable,' whose tenement represents one of the original shares, has a right to turn out beasts on the waste, on the whole waste and every inch of it, and of this right nor lord, nor community can deprive him[1176]. Perhaps we may attribute to our law about this matter an unusual and, in a certain sense, an abnormal individualism. In the much governed England of the Angevin time, the strong central power encouraged every freeholder to look to it for relief against all kinds of pressure seignorial or communal. Elsewhere a village moot may assume and retain some control over these pasture rights. But still the untilled land, the waste, the Almende, exists mainly, if not solely, for the benefit of a small group of tenements that are owned and possessed in severalty. As to the ownership of the land that is subject to the rights of pasture, it is a nude, a very nude dominium, and for a long while no one gives it a thought.

[The bond between neighbours.]

In a favourable environment the German village community may and will become a landowning corporation. But many dangers lie before it: internal as well as external dangers. We must not think of it as a closely knit body of men. The agrarian is almost the only tie that keeps it together. Originally the men who settle down in a village are likely to be kinsmen. Some phrases in the continental folk-laws, and some perhaps of our English place-names, point in this direction. But (explain this how we will) the German system of kinship, which binds men together by the sacred tie of blood-feud, traces blood both through father and through mother, and therefore will not suffer a 'blood-feud-kin' to have either a local habitation or a name[1177]. Very soon, especially if daughters or the sons of daughters are allowed (and very ancient Frankish laws allow them) to inherit the dead man's land, a man who lives in one village will often be closer of kin to men who live in other villages than to his neighbours. The village community was not a gens. The bond of blood was sacred, but it did not tie the Germans into mutually exclusive clans. Nor did it hold them in large 'house-communities,' for the partible inheritance seems as a general rule to have been soon partitioned[1178]. Nor again may we ascribe to the German house-father much power over his full-grown sons[1179].

[Feebleness of the village community.]

Moreover, the village community was not a body that could declare the law of the tribe or nation. It had no court, no jurisdiction. If moots were held in it, these would be comparable rather to meetings of shareholders than to sessions of a tribunal. In short, the village landowners formed a group of men whose economic affairs were inextricably intermixed, but this was almost the only principle that made them an unit, unless and until the state began to use the township as its organ for the maintenance of the peace and the collection of taxes. That is the reason why we read little of the township in our Anglo-Saxon dooms[1180]. Only as the state's pressure increases, does the vill become one of the public institutions of the kingdom. We may even exaggerate the amount of agricultural co-operation that was to be found within it. Beyond the age in which the typical peasant is a virgater contributing two oxen to a team of eight, our English evidence seems to point to a time when the normal 'townsman' held a hide and had slaves and oxen enough for its cultivation. Nor in all probability was the village community a large body. We may doubt whether in the oldest days it usually comprised more than some ten shareholders[1181].

[Absence of organization.]

Whatever might come in course of time, we must not suppose that the village had much that could be called a constitution. In particular, we must be careful not to carry too far back the notion that votes will be counted and that the voice of a majority will be treated as the voice of all. When that marvellous title De migrantibus raises a corner of the curtain and gives us our only glance into a village of newly settled Salian Franks, the one indisputable trait that we see among much that is disputable is that the new-comer must leave the village if one villager objects to his presence. His presence, we may suppose, might be objectionable because it might add to the number of those who enjoyed wood, waste and water in common; but any one villager can insist on his departure. Out of this state of things 'communal ownership' may grow; but all the communalism that we see at present is very like individualism[1182]. Above all, we must not picture these village lands as 'impressed with a trust' in favour of unborn generations or as devoted to 'public purposes.' If in course of time small folk, cottiers, 'under-settles' and the like, are found in the village, they will have to struggle for rights in the waste, and the rights, if any, that they get will be meagre when compared with those of the owners of 'whole lands' and 'half lands.' An oligarchy of peasant proprietors may rule the waste and the village.

[The German village on conquered soil.]

Thus even in favourable circumstances there were many difficulties to be overcome if the communalism, such as it was, of the village community was to be maintained and developed. But where the village was founded upon conquered soil the circumstances were not favourable. If the Germans invaded Gaul or Britain, the very fields themselves seemed to rebel against communalism and to demand a ring-fenced severalty. Throughout large tracts in Gaul the barbarians were content to adapt themselves to the shell that was provided for them. A certain aliquot share of every estate might be taken from its former owner and be allotted to a Burgundian or a Goth according to a uniform plan[1183]. Throughout other large tracts villages of the Germanic type were founded; a large part of northern Gaul was studded with such villages, and it may be well for us to remember that some of our Norman subjugators came to us from a land of villages, if others came from a land of isolated homesteads[1184]. There can be little doubt that in Britain numerous villages were formed which reproduced in all essentials the villages which Saxons and Angles had left behind them on the mainland, and as little doubt that very often, in the west and south-west of Britain, German kings and eorls took to themselves integral estates, the boundaries and agrarian arrangement whereof had been drawn by Romans, or rather by Celts[1185].

[Development of kingly power.]

Then the invasions and the long wars called for a rapid development of kingship. Very quickly the Frankish kingship became despotism. In England also the kings became powerful and the hereditary nobles disappeared. There was taxation. The country was plotted out according to some rude scheme to provide the king with meat and cheese and ale[1186]. Then came bishops and priests with the suggestion that he should devote his revenues to the service of God and with forms of conveyance which made him speak as if the whole land were his to give away. Here, so we have argued, was the beginning of a process which placed many a village under a lord. The words of this lord's 'book' told him that he was owner, or at least lord, of this village 'with its woods and its pastures.' The men of the village might or might not maintain all their accustomed rights, but at any rate no expansion of those rights beyond the ancient usage was possible. The potentialities of the waste (if we may so speak) had been handed over to a lord; the future was his.

[Free villages in England.]

We must not, however, repeat what has been lengthily said above touching the growth of the manorial system, though we are painfully aware that we have neglected many phases of the complicated process. Here let us remember that this process was not complete in the year 1066, and let us look once more at the free villages in the east; for example, at Orwell[1187]. Who owned the land that served as a pasture for the pecunia villae? Shall we place the ownership in the thirteen holders of the arable strips into which the four hides were divided, or in a corporation whereof they were the members, or in their various lords, those eight exalted persons to whom they were commended, or shall we say that here is res nullius? The supposition that the lords are owners of the waste we may briefly dismiss. The landholders are free to 'withdraw themselves' and seek other lords. That the land is res nullius we may also positively deny, if thereby be meant that it lies open to occupation. Let a man of the next village turn out his beasts there and he will find out fast enough that he has done a wrong. But who will sue him? Will all the villagers join as co-plaintiffs or will the village corporation appear by its attorney? Far more in accordance with all that we see in later days is it to suppose that any one of the men of Orwell who has a right to turn out beasts can resent the invasion[1188]. This brings to our notice the core of individualism that lies in the centre of the village. The houses and the arable strips are owned in severalty, and annexed to these houses and arable strips are pasture rights which are the rights of individuals and which, it may be believed, seem to exhaust the utility of the waste. What remains to dispute about? A nude, a very nude dominium, which is often imperceptible.

[The village meeting.]

Not always imperceptible. From time to time these Orwell people in town meeting assembled may have taken some grave resolution as to the treatment of the waste. They may now and then have decided to add to the amount of arable and diminish the amount of pasture. But occasional measures of this sort, for which a theoretical, if not a real, unanimity is secured, will not generate a regulative organ, still less a proprietary corporation. In decade after decade a township-moot at Orwell would have little to do. The moot of the Wetherley hundred is the court that deems dooms for the men of Orwell. If the lands of Orwell had been steadily regarded as the lands of a corporation they would have passed in one lump to some one Norman lord. But such corporate feeling as there was was weak. The men of Orwell had been seeking lords, each man for himself, in the most opposite quarters. Many of the virgates that are physically in one village have, as we have seen[1189], been made 'to lie in' other villages; for the free man can carry his land where he pleases. When this is so, he is already beginning to feel that the tie which keeps him in a village community is a restraint that has, perhaps unfortunately, been imposed upon him and his property by ancient history.

[What might have become of the free village.]

The fate of these lordless communities and of their waste was still trembling in the balance when King Harold fell. To guess what would have happened had he held his own is not easy. It is possible that what was done by foreigners would have been done, though less rapidly, by lords of English race, and that by consolidating soke and commendation into a firm landlordship and then making among themselves treaties of partition, they would have acquired the ownership of the pasture land subject to the rights of common. It is perhaps more probable that in some cases the old indeterminate state of things might have been maintained until the idea of a fictitious personality had spread from the chapter-house to the borough and from the borough to the village. Then the ownership of the soil might have been attributed to a corporation of which the freeholders in the village were the members. One famous case which came to light in the seventeenth century may warn us that throughout the middle ages there were here and there groups of freeholders, and even of customary tenants, who were managing agrarian affairs in a manner which feudalism could not explain and our English law would not warrant, for they were behaving as though they were members of a landowning corporation[1190]. Often in the east of England the manors must have been so intermixed that village meetings, not however of a democratic kind, may have dealt with business which lay outside the competence of any seignorial court. We know little and, it is to be feared, must be content to know little of such meetings. They were not sessions of a tribunal; they kept no rolls; the law knew them not. But we dare not say that if all seignorial pressure had been removed, the village lands would have been preserved as communal lands for modern villagers. Where there was no seignorial pressure, no joint and several liability for dues, the tie was lax between the owners of the strips in the village fields; and if there was a corporate element in their union, there was also a strong element of co-ownership. Had they been left to themselves, we can not say with any confidence that they would not sooner or later have partitioned the waste. Was it not their land, and might they not do what they liked with their own?

[Mark communities.]

One other question may be touched. It was the fashion in England some years ago that those who spoke of village communities should say something of 'the Germanic mark.' What they said seemed often to imply that the German village community was a mark community. This was a mistake. It seems indeed that there were parts of Germany in which the word 'mark' was loosely used[1191]; but the true Markgenossenschaft was utterly different from the Dorfgenossenschaft, and the lands with which it dealt were just those lands that belonged to no village[1192]. In the country which saw the Germans becoming an agricultural race, the lands belonging to the villages were but oases in a wild territory. In later days some large piece of this territory is found to be under the control of a 'mark-community,' whose members are dwelling here and there in many different villages and exercise rights over the land (for the more part it is forest land[1193]) that belongs to no village but constitutes the mark. Traces of what might have become 'the mark system' may perhaps be found in England; but not where they have been usually sought.

[Intercommoning between vills.]

We read of a tract in Suffolk which is common pasture for the whole hundred of Coleness[1194]. Instances in which a piece of land is common pasture for many vills were by no means uncommon in the thirteenth century. They grow rarer as time goes on. Our law provided but a precarious and uncomfortable niche for them under the rubric common pur cause de vicinage[1195]. These are the traces of what in different surroundings might have become, and perhaps were near to becoming, mark communities. In the thirteenth century the state seems to have been already enforcing the theory that every inch of land ought to lie within the territory of some vill[1196]. This was a police measure. The responsibility of one set of villagers was not to cease until the boundary was reached where the responsibility of another set began. But even in recent times there have been larger moors in the north of England which 'belonged' (we will use a vague word) to two or more townships in common. At any rate, we must not take back this theory that the vills exhaust the land into the days of the Germanic settlement[1197]. In some districts the vills must have been separated from each other by wide woods, and in all likelihood large portions of these woods were not proper to any one village, but were regarded as belonging, in some sense or another, to a group of villages. However, land of this kind was just the land which was most exposed to an assertion of royal ownership, and we imagine that a mark community had from the first little chance of organizing itself in England[1198]. But we have already made too many guesses.

[Last words.]

We must not be in a hurry to get to the beginning of the long history of law. Very slowly we are making our way towards it. The history of law must be a history of ideas. It must represent, not merely what men have done and said, but what men have thought in bygone ages. The task of reconstructing ancient ideas is hazardous, and can only be accomplished little by little. If we are in a hurry to get to the beginning we shall miss the path. Against many kinds of anachronism we now guard ourselves. We are careful of costume, of armour and architecture, of words and forms of speech. But it is far easier to be careful of these things than to prevent the intrusion of untimely ideas. In particular there lies a besetting danger for us in the barbarian's use of a language which is too good for his thought. Mistakes then are easy, and when committed they will be fatal and fundamental mistakes. If, for example, we introduce the persona ficta too soon, we shall be doing worse than if we armed Hengest and Horsa with machine guns or pictured the Venerable Bede correcting proofs for the press; we shall have built upon a crumbling foundation. The most efficient method of protecting ourselves against such errors is that of reading our history backwards as well as forwards, of making sure of our middle ages before we talk about the 'archaic,' of accustoming our eyes to the twilight before we go out into the night.

FOOTNOTES:

[1166] This seems to me the net outcome of the long and interesting controversy which has divided the Germanists as to the nature of the German Genossenschaft.

[1167] This is no extravagant hypothesis. See e.g. Stat. 7 Hen. VIII. c. 1 Thacte advoidyng pullyng downe of townes.

[1168] See Army Act, 1881, 44 and 45 Vic. c. 58, sec. 115.

[1169] Flach, Les origines de l'ancienne France, ii. 45, referring to the classical passages in Cæsar and Tacitus, says: 'Ce serait un abus de mots de dire que la tribu ou que le clan sont propriétaires. La tribu (civitas) a la souveraineté du territoire, les clans de leurs subdivisions ont l'usage des parts qui leur sont assignées. La conception même de la propriété est exclue par la nature des terres: étendue de friches toujours renaissantes et en surabondance toujours: superest ager.' See also Dargun, Ursprung des Eigenthums, Zeitschrift für vergleichende Rechtswissenschaft, v. 55.

[1170] Dargun, Ursprung des Eigenthums, Zeitschrift für vergleichende Rechtswissenschaft, v. 1 (1884). See also Hildebrand, Recht und Sitte, Jena, 1896.

[1171] In the A.-S. laws about tithes there is really no hint of communalism. When a landowner has ploughed his tenth acre, he is to assign that acre, or rather the crop that it will bear next year, to the church. That is all; and though it may be a rude plan, it is compatible with the most absolute individualism. Mr Seebohm, Village Community, 114, however, seems to think otherwise. As to the Welsh laws, we beg an enormous question if we introduce them into this context. A distribution of acres when the ploughing is done is just what we do not see in England.

[1172] As to the famous words of Tacitus 'Agri pro numero cultorum ab uniuersis in uices [al. inuicem] occupantur' and the proposal to read uniuersis vicis, one of the best suggestions yet made (Meitzen, Siedelung, iii. 586) is that Tacitus wrote merely ab uniuersis occupantur, that a copyist repeated the word uniuersis, and that other copyists tried to make sense of nonsense.

[1173] As to the state of things represented by the Lex Salica see Blumenstok, Entstehung des deutschen Immobiliareigenthums, Innsbruck, 1894, pp. 196 ff.

[1174] Hist. Eng. Law, ii. 155. It may be convenient now-a-days to say that ownership implies a power of alienation. See Pollock, Jurisprudence, 166. But to insist on this usage in such discussions as that in which we are engaged would lead to needless circumlocution. The question that is before us is whether as a complaint to which a court of law will give audience 'This acre is mine' is more modern than 'This acre is ours.'

[1175] As to the whole of this matter see Meitzen, op. cit., especially iii. 574-589. As regards arable land in this country the only 'survivals' which point to anything that should be called communal ownership are singularly inconclusive. They relate to small patches of arable land held by burgesses: that is to say, they relate to places in which a strong communal sentiment was developed during the later middle ages, and they do not relate to communities that ought to be called agricultural. The 'burgess plot' is not large enough to have been any man's livelihood when cultivated in medieval fashion, and it may well be modern. It is demonstrable that in one case a very 'archaic' arrangement was deliberately adopted in the nineteenth century by burgesses who preferred 'allotment grounds' to pasture rights. Maitland, Survival of Archaic Communities, Law Quarterly Review, ix. 36.

[1176] Hist. Eng. Law, i. 610-12.

[1177] Hist. Eng. Law, ii. 238. A hypothetical practice of endogamy will hardly give us the requisite explanation, for on the whole the church seems to have encountered little difficulty in imposing its extravagantly exogamous canons. To persuade the converts not to marry their affines was a much harder task.

[1178] Heusler, Institutionen, 229.

[1179] As to the ownership of land by 'families,' see Hist. Eng. Law, ii. 242.

[1180] See above, p. 147.

[1181] Of this in the next essay.

[1182] A valuable and interesting discussion of the proprietary system of the Lex Salica will be found in Blumenstok, Entstehung des deutschen Immobiliareigenthums, Innsbruck, 1894. This will serve as a good introduction to the large literature which surrounds the De migrantibus. The least probable of all interpretations seems that given by Fustel de Coulanges.

[1183] See Meitzen, op. cit. i. 526-35.

[1184] Meitzen, i. 517 and the Maps 66 a, 66 b in the Atlas.

[1185] Meitzen, ii. 97-122.

[1186] See above, p. 237.

[1187] See above, p. 129.

[1188] Throughout the historical time, so far as we know, the right of every commoner has been well protected against strangers. He might drive off the stranger's beasts, impound them, and, at all events if he had been incommoded, might sue for damages. See Marys's case, 9 Coke's Reports, 111 b; Wells v. Watling, 2 W. Blackstone's Reports, 1233. He needed no help from his neighbours.

[1189] See above, pp. 13, 124.

[1190] I refer to the much discussed case of Aston and Cote. See Law Quarterly Review, ix. 214.

[1191] Meitzen, op. cit. i. 573.

[1192] Ibid. i. 122-60.

[1193] Therefore its assembly is a Holtding, and a Holzgraf presides there: Meitzen, op. cit. i. 125.

[1194] D. B. ii. 339 b: 'In hundret de Coleness est quedam pastura communis omnibus hominibus de hundret.' At Rhuddlan (D. B. i. 269) Earl Hugh has given to Robert half the castle, half the burg, and 'half of the forests which do not pertain to any vill of the said manor.' This, however, is in Wales.

[1195] Hist. Eng. Law, i. 608.

[1196] Ibid. i. 547.

[1197] Blomefield, Hist. Norfolk, iv. 691 gives an account of an extremely fertile tract of pasture known as Tilney Smeeth upon which the cattle of seven 'towns' intercommoned.

[1198] If we are right in supposing that very generally a royal land-book disposes of a whole village, then if it proceeds to give rights in the communis silva, it is probably speaking of a wood that is not regarded as annexed to that village but of one which is common to various villages. The intercommoning of vills in a forest is illustrated by the famous Epping case, Commissioners of Sewers v. Glasse, Law Reports, 19 Equity, 134. But for the king's rights in forest land, a 'mark community' might have grown up in Epping. On the other hand, but for the king's rights, the land might long ago have been partitioned among the mark-men.

ESSAY III.

THE HIDE.

[What was the hide?]

What was the hide? However unwilling we may be to face this dreary old question, we can not escape it. At first sight it may seem avoidable by those who are interested in the general drift of national life, but have no desire to solve petty problems or face unnecessary difficulties. The history of weights and measures, some may say, is probably very curious and no doubt is worth study; but we, who shall be amply satisfied if we understand the grand movements and the broad traits, must leave this little province, as we must leave much else, to antiquarian specialists. Unfortunately, however, that question about the hide is 'pre-judicial' to all the great questions of early English history.

[Importance of the question.]

If our choice lay between 30 and 40 acres, or again between a long and a short hundred, then indeed we might refuse to take part in the conflict. But between the advocates of big hides of 120 acres or thereabouts and the advocates of little hides of 30 acres or thereabouts there should be no peace. In the construction of early English history we shall adopt one style of architecture if we are supplied with small hides, while if our materials consist of big hides an entirely different 'plan and elevation' must be chosen. Let us take one example. We find the kings giving away manses or hides by fives and tens. What are they really doing? Are they or are they not giving away whole villages? Obviously this question is pre-judicial to many another. Our whole conception of the Anglo-Saxon kingship will be profoundly affected by our attribution or our denial to the king of an alienable superiority over villages that are full of free landowners. This question, therefore, we should have upon our hands even if we thought that we could rear the fabric of political and constitutional history without first laying an economic foundation. But the day for such castles in the air is passing.

Howbeit, we must not talk in this pompous way of castles or foundations. We are not going to lay foundations, nor even to choose a site. We hope to test a few materials and perhaps to show how a site may some day be acquired.

[Hide and manse in Bede.]

From the Norman Conquest so far back as we can go, a certain possessory unit or a certain typical tenement is being thrust upon our notice by the laws, the charters, the historians[1199]. We may begin with Bede. When he is going to speak of the area or the capacity of a tract of land, be it large or be it small, he refers to a certain unit or type, namely, the land of one family (terra unius familiae). The abbess Hild acquires the land of one family and erects a religious house upon it[1200]; king Oswy gives away twelve tracts of land, each of which consists of 'the possessiones of ten families'[1201]; the kingdom of the South Saxons contains the land of 7,000 families[1202]. We see that already Bede is thinking rather of the size or capacity of a tract of soil than of the number of households that happen to be dwelling there. 'The measure (mensura) of the Isle of Wight is, according to the English mode of reckoning, 1200 families[1203].' 'The isle of Thanet is no small island: that is to say, according to the customary English computation, it is of 600 families[1204].' Some apology is due from a scholar who writes in Latin and who writes thus; so Bede tells us that he is using the English mode of reckoning; he is literally translating some English term.

[Hide and manse in the land-books.]

When his own book is rendered into English that term will reappear. Usually it reappears in the form híd, but occasionally we have hiwisc or hiwscipe. There seems no room for doubt that hiwisc and the more abstract hiwscipe mean a household, and very little room for doubt that híd springs from a root that is common to it and them and has the same primary meaning[1205]. Elsewhere we may find an equivalence between the hide and the hiwisc:--'If a Welsh man thrives so that he has a hiwisc of land and can render the king's gafol, then his wergild is 120 shillings; but if he attains only to a half-hide then his wergild is 80 shillings[1206].' In the charters also we may now and then find that the land to be conveyed is a hiwisc[1207], or is the land of one familia[1208]. However, the common English term is hide, while the scribes of the land-books, who as yet are above inventing a Latin hida, ring the changes on half-a-dozen phrases[1209]. We begin with terra unius manentis, terra unius casati, terra unius tributarii, which keep clearly before our eyes the fact or the theory that the normal householder, the normal taxpayer, will possess one of these units. At a little later time the more convenient mansa (sometimes mansio[1210] or mansiuncula) becomes popular, and we may see also that men are beginning to speak of manents, casates, tributaries 'of land,' much as they would speak of acres or perches of land[1211]. So far as we can see, all these terms are being used as though they were absolutely equivalent. If a clerk has to describe several different tenements, he will write of manentes in one clause and casati in the next, merely because a repetition of the same term would be inelegant[1212]. In Kentish charters we read more of the aratrum and the sullung than of the manse and the hide; but apparently we have here other names for what is a similar and in some sort an equivalent unit[1213]; and it is by no means unknown that Kentish tenements will be called manses and hides[1214].

[The large hide and the manorial arrangement.]

Now if we ask whether the type to which reference is thus made is a tenement comprising about six-score acres of arable land, we are asking a question of the gravest importance. For let us look at some of the consequences which will flow from an affirmative answer. Let it be granted that, long before the Norman Conquest, the hide has become an unit in an unwieldy system of taxation, which has been governed by false assumptions and vitiated by caprice, until the fiscal hide in a given case may widely diverge from its original or indeed from any fixed type. None the less, this system has for its base the theory that the typical man of Anglo-Saxon law, the typical householder or taxpayer, has a hide, has land enough for a team of oxen, has 120 arable acres. The language of the charters supposes that this is so. No doubt the supposition is, as every supposition of this kind must be, untrue; but still it must have a core of truth, and in the remotest age this core will be at its largest. Men will not fall into a habit of speaking of 120 arable acres or thereabouts as the tenement of one family or of one householder, unless as a matter of fact the tenement of one family or of one householder has in a preponderant number of cases some such content as this. Suppose, for example, that the Anglo-Saxon kingdoms of the sixth century had been composed chiefly of lords, whose estates ranged from 600 acres to some much larger quantity, and of 'semi-servile' cultivators, the average size of whose tenements was 30 acres, such a usage of words as that which we are considering could never have struck root. Either the small tenement of the cultivator or the big tenement of his lord must have been taken as the typical 'manse,' the typical 'land of one householder.' Let us at once press home this argument, though at present it involves a hypothesis, for in the dull disquisitions that follow we may be cheered by the thought that great questions are at stake. If in the oldest time the typical 'land of one householder' had 120 arable acres, the manorial system was not prevalent, not dominant, in England. It will be admitted on all hands that this would be much too large a tenement for a serf or a semi-servile colonus. On the other hand, it is much too small a tenement for any one who is going to play the part of a manorial lord, unless we use the term manorial in so wide a sense that it becomes useless. For how many tenants will this manorial lord, who is to be taken as the typical householder, have upon his 120 acres? If his arrangements are at all like those revealed to us by Domesday Book, he will keep at least one-third of his land in demesne, and there will remain but 80 acres for the coloni. Shall we give him three coloni, or four or five? We can hardly give him a larger number. Furthermore, it is quite clear that this 'manorial lord' will not own a village. The villages as we see them in the earliest charters and thence onward into Domesday Book contain five, ten, fifteen hides. Our manorial lord must be content to take his hide in little scraps scattered about among the scraps of some ten or twenty other 'manorial lords' whose hides are similarly dispersed in the open field of a village. All this seems to follow inevitably if once we are satisfied that the hide of the old days had 120 arable acres or thereabouts; for the hide is the land of one typical householder[1215].

[Our course.]

Now for a long time past there has been among historians and antiquaries a good deal of agreement in favour of this large hide, but against it appeal may be made to honoured names, such as those of Kemble and Eyton[1216]. Also it must be confessed that in favour of much smaller hides, or at least of much smaller hides for the earliest days, some weighty arguments may be advanced. In order that they may be understood, and perchance refuted, we must pursue a long and devious course and must raise by the way many questions, touching which we have no right to an opinion: questions about agriculture, questions about land measurement, perhaps even physiological questions. Also it is our misfortune that, as we stumble through the night, we must needs stumble against some of our fellow adventurers.

FOOTNOTES:

[1199] The word tenement will be often employed hereafter. Has it become needful to protest that a tenement need not be a house? If my body is my soul's 'frail tenement,' that is not because my body holds my soul (a reprobate error), but because (for this is better philosophy and sound law) my soul holds my body. But, to descend from these heights, it will be a thousand pities if a vulgar blunder compels us to abandon the excellent tenement in favour of the feeble holding or the over-worked estate.

[1200] Hist. Eccl. lib. 4, c. 21 (23), ed. Plummer, i. 253.

[1201] Ibid. lib. 3, c. 24, ed. cit. i. 178.

[1202] Ibid. lib. 4, c. 13, ed. cit. i. 230.

[1203] Ibid. lib. 4, c. 14 (16), ed. cit. i. 237.

[1204] Ibid. lib. 1, c. 25, ed. cit. i. 45.

[1205] If, as Mr Seebohm suggests (Village Community, p. 398), this word meant the skin of an ox, some one would assuredly have Latined it by corium, and not by terra unius familiae (manentis etc.)

[1206] Schmid, App. VII. (Wergilds), 2, § 7. By comparing this with Ine 32 we get an even more explicit equation: 'Gif Wylisc mon hæbbe hide londes' = 'Gif Wilisc mon geþeo þæt he hæbbe hiwisc landes.'

[1207] K. 271 (ii. 52), a forgery: 'æt Cemele tien hyda, æt Domeccesige þriddehalf hiwisce.'--K. 1077 (v. 146): 'æt hilcan hiwisce feowerti penega.'--K. iii. 431: 'ðæs anes hiwisces boc ... ðas oðres hiwisces.'--K. 1050 (v. 98). See also Crawford Charters, 127, for hiwscipe.

[1208] K. 1006 (v. 47): 'de terra iuris mei aliquantulam portionem, iuxta mensuram scilicet decem familiarum.' See also K. 1007.

[1209] The would-be Latin hida occurs already in K. 230 (i. 297), but is rare before the Conquest. On the other hand, as an English word híd is in constant use.

[1210] K. 131 (i. 159); K. 140 (i. 169).

[1211] Thus, to give one early example, K. 1008 (v. 49): 'duodecim tributarios terrae quae appellantur Ferrinig.' So in K. 124 (i. 151) we have the neuter form manentia.

[1212] A good instance in Egbert's Dialogue, H. & S. iii. 404. For how many hides may the clergy swear? A priest may swear 'secundum numerum 120 tributariorum'; a deacon 'iuxta numerum 60 manentium'; a monk 'secundum numerum 30 tributariorum.' Here tributarii alternates with manentes for the same reason that secundum alternates with iuxta. So K. 143 (i. 173): 'manentes ... casati ... manentes ... casati.'

[1213] See Schmid, p. 611.

[1214] See, for instance, Werhard's testament (A.D. 832), K. 230 (i. 297): 'Otteford 100 hidas, Grauenea 32 hidas.' These are Kentish estates. Hereafter we shall give some reasons for thinking that the Kentish sullung may have a history that is all its own.

[1215] Mr Seebohm, Village Community, p. 395, admits that the familia of Bede and the casatum of the charters is the hide, and that the hide has 120 acres. This does not prevent him from holding (p. 266) that when Bede speaks of king Oswy giving to a church twelve possessiunculae, each of ten families, we must see decuriae of slaves, 'the bundle of ten slaves or semi-servile tenants.' He seems also to think that while the hide was 'the holding of the full free landholder,' the hiwisc was the holding of a servile family. But the passage which he cites in a note (Wergilds, § 7) seems to disprove this, for there undoubtedly, as he remarks, hiwisc=hide. It is the passage quoted above on p. 359. The Welshman gets a wergild of 120 shillings (three-fifths of an English ceorl's wergild) by acquiring a hiwisc or (Ine 32) hide of land. Why the hide should not here mean what it admittedly means elsewhere is not apparent.

[1216] Though Eyton has (for some reason that we can not find in his published works) allowed but 48 'gheld acres' to the 'gheld hide,' he can hardly be reckoned as an advocate of the Small Hide. His doctrine, if we have caught it, is that the hide has never been a measure of size. This raises the question--How comes it then that the fractions into which a hide breaks are indubitably called (gheld) 'acres'? Why not ounces, pints, pence?

§ 1. Measures and Fields.

[Permanence and change in agrarian history.]

At the present moment there is no need for arguments which insist upon the immutable character of ancient agrarian arrangements. If we take up a map of a common field drawn in the eighteenth century, the lines that we see upon it are in the main very old. The scheme seems fashioned for the purpose of resisting change and compelling the men of one age to till the land as their fathers tilled it. Nothing but an unanimous agreement among those who are not likely to agree can break up that prison-house of cells in which agriculture has been cramped and confined. Rather, it may be, the student who is perusing the 'estate map' and who is fascinated by the possession of a new tool for picking historical locks, should warn himself that, though there has been permanence, there has also been change, and that in a far-off time changes of a certain sort came quickly. True that in the current of agricultural progress there is a rapid acceleration as it flows towards our own day. We may easily go back to an age when the introduction of a new process or new implement was rare. On the other hand, if we fix our attention on the map of any one village and contemplate its strips and balks and virgates, the hazard involved in an assumption of their antiquity will increase swiftly when we have left behind us the advent of Duke William and are urging our inferential career towards Hengest or, it may be, towards Cæsar.

[Rapidity of change in old times.]

Let us look, for example, at the changes that take place in some Essex villages during the twenty years that precede the Domesday Inquest. The following table shows them:

Villani Bordarii Servi Lord's Men's teams teams

Teidana[1217], T. R. E. 5 3 4 2 4 T. R. W. 1 17 0 3 3

Waldena[1218], T. R. E. 66 17 16 8 22 T. R. W. 46 40 20 10 22

Hame[1219], T. R. E. 32 16 3 5 8 T. R. W. 48 79 3 4 12

Benefelda[1220], T. R. E. 10 2 7 3 7 T. R. W. 9 11 4 3 4

Wimbeis[1221], T. R. E. 26 18 6 3 21 T. R. W. 26 55 0 3 15

These are but specimens of the obscure little revolutions that are being accomplished in the Essex villages. In general there has been a marked increase in the number of bordarii, at the expense of the villeins on the one part and the serfs on the other[1222], and this, whatever else it may represent, must tell us of a redistribution of tenements, perhaps of a process that substitutes the half-virgate for the virgate as the average holding of an Essex peasant. The jar of conquest has made such revolutions easy[1223].

[Devastation of villages.]

But, it will be said, though the 'bundles' of strips be cut in half, the main features of the field remain constant. Let us, however, look at Yorkshire, where for fifteen years an immense tract of land has been lying 'waste.' Have we any reason to believe that when agriculture slowly steals back into this desert there will be a mere restoration of the defaced map? Surely not. If for a few years an 'open field' lies waste, there will be no mere restoration. For one thing, many of the old outlines will have utterly vanished. Even if the acres were already divided by the so-called 'balks' (and we can not be sure that they always were[1224]), the balk was but a narrow strip of unploughed sward and would hardly be perceptible when the whole field was once more a sheet of grass and weeds. For another thing, new settlers would probably begin by ploughing only a small portion of the old field. It is likely enough that their measuring rod would not be even approximately equal to the rod employed in a previous century, and they would have ample opportunity for the introduction of novelties, for the substitution of three fields for two and for all that such a change implies. Now William's deliberate devastation of the north is but one final and grandiose exploit of an ancient kind of warfare. After his day agrarian history becomes more stable because invasions cease and the character of civil warfare changes. The strife between York and Lancaster, between King and Parliament, passes like a thunderstorm over the fields; it damages the crops; but that is all, and Bosworth 'Field' and Naseby 'Field' will next year be tilled in the same old way. A raid of the Danes, a feud between Angle and Saxon, was a different affair. The peasants fought. Men, women and children were sold as slaves. Also there was deliberate devastation. 'They make a wilderness and call it peace.' What else should they call it, when a foodless wilderness is the most scientific of all frontiers? Readers of the English Chronicle will doubt whether there is any village in England that has not been once, or more than once, a deserted village. And if we must reckon with war, there is famine also to be reckoned with. When in a few brief words the English Chronicler tells us that in 1043 there was mickle hunger in the land so that the sestar of corn sold for sixty pence and even more[1225], he is, like enough, telling us of a disaster which depopulated many a village and forced many a villager to bow his head for meat in those evil days[1226]. Agrarian history becomes more catastrophic as we trace it backwards.

[Village colonies.]

And, putting on one side the ravages of war and famine, we must call to mind the numerous hints that our map gives us of village colonization[1227]. Men did not make two contiguous villages at one time and call them both Hamton. Names are given to places in order that they may be distinguished from neighbouring places. So when we see two different villages, called Hamton and Other Hamton, lying next each other, we may be fairly certain that they are not of equal antiquity, and it is not unlikely that the one is the offshoot and daughter of the other[1228]. There are about one hundred and fifty Newtons and Newtowns in England. Every instance of colonization, every new settlement in the woods, gave scope for the introduction of novelties, such scope as was not to be found in after days when men stood thicker on the soil and all the best land was already tilled[1229].

[Antiquity of the three-field system.]

Therefore we must not trust a method of husbandry or a scheme of land-measures much further than we can see it. Nothing, for example, could be rasher than the assumption that the 'three-course system' of tillage was common in the England of the seventh century[1230]. We have a little evidence that it was practised in the eleventh[1231], perhaps some evidence, that it was not unknown in the ninth[1232]. But 'the two-course system' can be traced as far[1233], and seems to have been as common, if not commoner, in the thirteenth century[1234]. If on a modern map we see a village with 'trinity fields,' we must not at once decide that those who laid them out sowed two in every year, for it is well within the bounds of possibility that two were left idle[1235]. An agriculture of this kind was not unknown in the Yorkshire of the fourteenth century[1236], and indeed we read that in the eighteenth 'one crop and two fallows' was the traditional course in the open field of a Suffolk village[1237].

[Differences between the different shires.]

We have time enough on our hands. Between Domesday Book and the withdrawal of the legions lies as long an interval as that which separates the Conqueror from Mr Arthur Young. Also we have space enough on our hands. Any theory that would paint all England as plotted out for proprietary and agricultural purposes in accordance with a single pattern would be of all theories the least probable. We need not contrast Kent with Westmoreland, or Cornwall with Norfolk, for our maps seem to tell us that Somerset differed from Wiltshire and Dorset. The settlement of a heathen folk loosely banded together under a war-lord was one thing; the conquest of a new province by a Christian king who was advised by foreign bishops and had already been taught that he had land to 'book,' would be another thing. If, as seems possible, we read in Ine's laws of a 'plantation' of some parts of Somerset effected by means of large allotments made to the king's gesiths, who undertake to put tillers on the soil[1238], we must not at once infer that this is an old procedure, for it may be very new, and may have for its outcome an agrarian arrangement strikingly unlike that which existed in the heart of the older Wessex.

[New and old villages.]

Moreover there are upon the face of our map many cases which seem to tell us that in the oldest days the smallest district that bore a name was often large, and therefore that the territory which subserved a single group of homesteads was often spacious. One example we will take from Norfolk. We find a block of land that now-a-days consists of eleven parishes, namely, Wiggenhall St. Mary the Virgin, Wiggenhall St. German, Wiggenhall St. Peter, Wiggenhall St. Mary Magdalen, Tilney cum Islington, Tilney All Saints, Tilney St. Lawrence, Terrington St. Clement, Terrington St. John, Walpole St. Peter, Walpole St. Andrew[1239]. In such a case we can hardly suppose that all these villages belong to the same age, even if we are not entitled to infer that the later villages were not founded until the day for parish churches had arrived. This being so, it is highly probable that some villages were formed at all stages of the feudalizing process, and therefore that a historical account of 'the' English township, or even of 'the' English nucleated village, would of necessity be untrue. And, while this East Anglian specimen is still before us, we may notice another interesting trait. In the Marshland Fen there is a considerable tract of ground which consists of 'detached portions' of these and other villages. Each has been given a block there, a fairly rectangular block. At one point the partition is minute. A space of less than 36 acres has been cut up so that no less than six villages shall have a piece, a rectangular piece of it[1240]. It seems very possible that this fen has at some time been common ground for all these villages, and, as already said, it is in this quarter that we may perhaps find traces of something that resembled the 'marks' of Germany[1241]. The science of village morphology is still very young, and we must not be led away into any discussion of its elements; but there is the more reason why we should take to heart those warnings that it already gives us, because what we can read of hides is to be found for the more part in documents proceeding from a central power, which, for governmental and fiscal purposes, endeavours to preserve fictitious continuity and uniformity in the midst of change and variety. However, we must draw nearer to our task.

[History of measures.]

As regards land measurement, we may be fairly certain that in the days before the Norman Conquest there was little real, though much nominal uniformity. The only measures for the size of things with which nature has equipped the natural man are his limbs. For the things that he handles he uses his thumb, span, cubit, ell; for the ground upon which he walks, his foot and his pace. For large spaces and long distances he must have recourse to 'time-labour-units,' to the day's journey and the morning's ploughing. Then gradually, under the fostering care of government, steady equations are established between these units:--twelve thumbs, for instance, are to make a foot. Thus the measures for land are brought into connexion with the more delicate measures used for cloth and similar stuff. Then an attempt to obtain some standard less variable than the limb may forge a link between thumbs and grains of corn. Another device is the measuring rod. One rod will represent the arm of an average man; a longer rod may serve to mediate between the foot which is short and the acre or day's ploughing which is large. In laying out a field in such wise that it shall consist of equal pieces, each of which can be ploughed in a forenoon, we naturally use a rod. We say, for example, that to plough a strip that is 4 rods wide and 40 long is a fair day's work. For some while there is no reason why the rods employed in two neighbouring villages should be strictly or even approximately equal[1242]. Taxation is the great force that makes for standard land measures. Then a king declares how many thumbs there ought to be in the cloth-ell or cloth-yard. At a later time he actually makes cloth-ells or cloth-yards and distributes them, keeping an ultimate standard in his own palace. Thenceforward all other units tend to become mere fractions or multiples of this royal stick. The foot is a third, the thumb or inch a thirty-sixth part thereof. Five and a half cloth-measuring yards make a royal land-measuring rod. Plot out a space which is four rods by forty, you will have an acre.

[Slow growth of uniformity.]

The whole story, if ever it be told at length, will be intricate; but we believe that a general persuasion that land-measurements ought to be fixed by law and by reference to some one carefully preserved standard is much more modern than most people think. Real accuracy and the establishment of a measure that is to be common to the whole realm first emerge in connexion with the measurement of cloth and such like. There is a delightful passage in the old Scotch laws which tells us that the ell ought to contain 37 inches meted by the thumbs of three men, 'þat is to say, a mekill man and a man of messurabill statur and of a lytill man[1243].' We have somewhere read that in Germany, if a perch of fifteen feet was to be manufactured, the first fifteen people who chanced to come out of church contributed each a foot towards the construction of the standard. At an early time, however, men were trying to find some class of small things which were of a fairly invariable length and hit upon barley-corns. This seems to have happened in England before the Norman Conquest[1244]. Instead of taking the 'thoume' of 'a man of messurabill statur' for your inch, you are to take three barley-corns, 'iii bear cornys gud and chosyn but tayllis (i.e. without the tails)'[1245]. But the twelfth century was drawing to an end before any decisive step was taken to secure uniformity even in the measurement of cloth. In Richard I.'s day guardians of weights and measures are to be appointed in every county, city and borough; they are to keep iron ulnae[1246]. At this time or a little later these ulnae, ells or cloth-yards were being delivered out by a royal officer to all who might require them, and that officer had the custody of the ultimate standards[1247]. We may doubt whether the laws which require in general terms that there shall be one measure throughout the realm had measures of land in view[1248]. A common standard is not nearly as necessary in this case as it is in the case of cloth. Even in our own day men do not buy land by the acre or the perch in the same sense as that in which they buy cloth or cotton by the yard. Very rarely will anyone name a price for a rood and leave it to the other bargainer to decide which out of many roods shall be included in the sale. Nevertheless, the distribution of iron ulnae was important. An equation was established between the cloth measure and the land measure: five-and-a-half ulnae or cloth-yards make one royal perch. After this we soon find that land is occasionally measured by the iron ulna of the king[1249].

[Superficial measure.]

The scheme of computation that we know as 'superficial measure' was long in making itself part of the mental furniture of the ordinary man. Such terms as 'square rod' and 'square mile' were not current, nor such equations as that which tells us how 144 square inches make a square foot. Whatever may have been the attainments of some cloistered mathematicians, the man of business did not suppose that he could talk of size without talking of shape, and indeed a set of terms which speak of shapeless size is not very useful until men have enough of geometry and trigonometry to measure spaces that are not rectangular parallelograms. The enlightened people of the thirteenth century can say that if an acre is x perches long it is y perches wide[1250]. They can compare the size of spaces if all the lines be straight and all the angles right; and for them an acre is no longer of necessity ten times as long as it is broad. But they will not tell us (and they do not think) that an acre contains z 'square perches.' This is of some importance to students of Domesday Book. Very often the size of a tract of land is indicated by the length of two lines:--The wood or the pasture is x leagues (furlongs, perches, feet) in length and y in breadth. Now, to say the least, we are hasty if we treat this as a statement which gives us size without shape. It is not all one to say that a wood is a league long and a league wide and to say that it is two leagues long and half a league wide. The jurors are not speaking of superficial content, they are speaking of length and breadth, and they are either giving us the extreme diameters of the irregularly shaped woods and pastures, or (and this seems more probable) they are making rough estimates of mean diameters. If we go back to an earlier time, the less we think of 'superficial measure' the better[1251].

[The modern system.]

Let us recall the main features of our modern system, giving them the names that they bore in medieval Latin.

Linear Measure.

12 inches (pollices)=1 foot (pes); 3 feet=1 yard (ulna); 5·5 yards=1 rod, pole, perch (virga, pertica, perca); 40 perches=1 furlong (quarentina); 8 furlongs=1 mile (mille); 12 furlongs=1 leuua, leuca, leuga (league)[1252].

Superficial Measure.

144 square inches=1 square foot; 9 square feet=1 square yard; 30·25 square yards=1 square perch; 40 square perches=1 rood; 4 roods=1 acre[1253].

In the thirteenth century these outlines are already drawn; but, as we have seen, if we are to breathe the spirit of the time, we ought to say (while admitting that acres may be variously shaped) that the normal acre is 4 perches in width and 40 perches (=1 furlong) in length. The only other space that we need consider is the quarter of an acre, our rood. That ought to be 1 perch in width and 1 furlong (=40 perches) in length. The breadth of the acre is still known to all Englishmen, for it is the distance between the wickets.

[The ancient elements of land measure.]

This system has been generated by the corelation of cloth-measures and land-measures. If we are going back to remote times, we must expel the cloth-measures as intruders. What then is left is very simple; it is this:--the human foot, a day's ploughing and a measuring stick which mediates between feet and acres. That stick has had many names. Our arithmetic books preserve three, 'rod, pole or perch'; it has also been known as a gād or goad and a lug: but probably its oldest name is yard (gyrd). It is of some importance that we should perceive that our modern yard of three feet is not one of the very ancient land-measures. It is a 'cloth-yard' not a land-yard. In medieval documents the Latin name for it is ulna[1254], and probably the oldest English name for it is eln, elle, ell. There seems to have been a shifting of names. The measuring rod that was used for land had so many names, such as perch, rod, pole, goad, lug, that it could afford, if we may so speak, to dispense with the additional name of yard, which therefore might stand for the much shorter rod that was used by the clothiers. However, even in our own century men have been speaking of 'yards of land' in a manner which implies that at one time a yard, when mentioned in this context, was the same thing as the perch. When they have spoken of a 'yard of land' they have meant sometimes a quarter of an acre (our rood) and sometimes a much larger space. In 1820 a 'yard of land' means, we are told, a quarter of an acre in Wiltshire, while in Buckinghamshire it stands for a tract which varies from 28 to 40 acres[1255]. This last application of the term we shall consider by and by. A yard of land or rood of land (rood and rod are all one) is a quarter of an acre, because an acre is four rods or 'yards' or perches in width, and, when an acre is to be divided, it is always, and for a very good reason, divided by lines parallel to its long sides. So though the rood or yard of land may in course of time take other shapes and even become a shapeless size, it ought to be a rod or 'yard' in width and forty rods or one furlong in length.

[The German acre.]

So we start with the human foot, the day's ploughing and a rod. How much borrowing there has been in this matter by race from race is an obscure question. For example, the mediation of a rod between the foot and the day's work is common to the Roman and the Germanic systems. Here the similarity ends, and the vast differences which begin seem to have exceedingly deep roots. We can not be content with saying that the Roman puts two oxen in the plough and therefore draws short furrows, whereas the German puts eight oxen and draws long furrows. There seems to be a radical disagreement between them as to what a plough should be and what a plough should do[1256]. To these matters we can make but the slightest reference, nor dare we touch the problems of Celtic history. Somehow or another the Germans come to the rule that generally an acre or day's work should be four rods wide and, if possible, about forty rods long[1257].

[English acres.]

[Small acres.]

It is very probable that in England this rule prevailed at a remote time. Throughout the middle ages and on to our own day there have been many 'acres' in England which swerved markedly from what had become the statutory type, and in some cases a pattern divergent from the statutory pattern became 'customary' in a district. But apparently these customary acres commonly agree with the royal standard in involving the equation: 1 acre = 4 perches x 40 perches[1258]. In Domesday Book and thence onwards the common Latin for furlong is quarentina, and this tells us of furrows that are forty perches long. It is when we ask for the number of feet in a perch that we begin to get various answers, and very various they are. The statutory number, the ugly 16·5, looks like a compromise[1259] between 15 and 18, both of which numbers seem to have been common in England and elsewhere. This is the royal equation in the thirteenth century; it has been found near the middle of the twelfth[1260]; more at present we cannot say. Short perches and small acres have been very common in the south of England. In 1820 some information about the customary acre was collected[1261]:--In Bedfordshire it was 'sometimes 2 roods.' In Dorsetshire 'generally 134 [instead of 160] perches.' In Hampshire, 'from 107 to 120 perches, but sometimes 180,' In Herefordshire, 'two-thirds of a statute acre,' but 'of wood, an acre and three-fifths or 256 perches.' In Worcestershire, 'sometimes 132 or 141 perches.' In Sussex, '107, 110, 120, 130 or 212 perches'; 'short acre, 100 or 120 perches'; 'forest acre, 180 perches,' Then as to rods, the 'lug or goad' of Dorsetshire had 15 ft. 1 in.; in Hertfordshire, 20 feet; in Wiltshire, 15 or 16-1/2 or 18. The wide prevalence of rods of 15 feet can not be doubted, and it seems possible that rods with as few as 12 feet have been in use[1262]. An acre raised from a 12 foot rod would, if feet were invariable, be little more than half our modern statute acre. Nowhere do we see any sure trace of a rod so short as the Roman pertica of ten pedes, though the scribes of the land-books will give the name pertica to the English gyrd[1263].

[Large acres.]

In northern districts the 'customary' acre grows larger. In Lincolnshire it is said to be '5 roods, particularly for copyhold land'; but small acres were known there also[1264]. In Staffordshire, 'nearly 2-1/4 acres.' In Cheshire, 'formerly and still in some places 10,240 square yards' (pointing to a rod of 24 feet). In Westmoreland, '6760 square yards' (pointing to a rod of 19-1/2 feet), also the so-called 'Irish acre' of 7840 square yards (pointing to a rod of 21 feet). There is much evidence that rods of 20 and 21 feet were often used in Yorkshire and Derbyshire. Rods of 18, 19-1/2, 21, 22-1/2 and 24 feet were known in Lancashire. A writer of the thirteenth century speaks as if rods of 16, 18, 20, 22 and 24 feet were in common use, and mentions none shorter[1265]. As just said, the Irish plantation acre was founded on a rod of 21 feet. The Scotch acre also is larger than the English; it would contain about 6150·4 instead of 4840 of our square yards; it is formed from a rod of 6 Scotch ells. On the other hand, the acres which have prevailed in Wales seem to be small; one type had 4320 of our square yards, another 3240.

[Anglo-Saxon rods and acres.]

There has been variety enough. Even if the limits of variation are given by rods of 12 and 24 feet, this will enable one acre to be four times as large as another. Whether before the twelfth century there was anything that we ought to call a standard rod, a royal rod for all England, must be very doubtful. In royal and other land-books references are made to furlongs, to acre-breadths, to yards or rods or perches, and to feet as to known measures of length[1266], but whether a kingly gift is always measured by a kingly rod we do not know. The Carolingian emperors endeavoured to impose a rod upon their dominions; it seems to have been considerably shorter than our statute perch[1267]. In this province we need not expect many Norman novelties. We see from Domesday Book that the Frenchmen introduced the ancient Gallic arpentum[1268] as a measure for vineyards[1269]; but most of the vines were of their own planting, and the mere fact that they used this measure only for the vineyards seems to tell us that they were content with English rods and English acres[1270]. In Normandy the perches seem to have ranged upwards from 16 to 25 feet[1271]; so that 16·5 would not have hit the average. On the whole, our perch seems to speak of a king whose interests and estates lay in southern England and who struck a mean between 15 and 18. Whoever he was, we owe him no thanks for the 'undecimal' element that taints our system[1272].

[Customary acres and forest acres.]

But we must be cautious in drawing inferences from loose reports about 'customary' measures. Village maps and village fields have yet to be seriously studied. We may in the meanwhile doubt whether in some districts to which the largest acres are ascribed, such acres are normal or are drawn in the oldest villages. We may suspect them of being 'forest acres.' If once a good many of these abnormal units are distributed in a district, they will by their very peculiarity attract more than their fair share of attention and will be spoken of as characteristic of that district. In Germany, as well as in England, we find forest acres which are much larger than common acres and are meted by a rod which is longer than the common rod[1273]. Possibly men have found a long rod convenient when they have large spaces to measure, but we fancy that the true explanation would illustrate the influence exercised by taxation on systems of measurement. Some scheme of allotment or colonization is being framed; an equal tribute is to be reserved from the allotted acres. If, however, there is uncleared woodland to be distributed, rude equity, instead of changing the tribute on the acre, changes the acre's size and uses a long rod for land that can not at once be tilled[1274]. Also fields that were plotted out by Normans were likely to have large acres, and as the perches of Normandy seem to have been longer than most of the perches that were used in France, we may perhaps infer that the Scandinavian rods were long and find in them an explanation of the big acres of northern England. But at present such inferences would be precarious.

[The acre and the day's work.]

Whether in its origin the land-measuring rod is a mere representative of a certain number of feet or is some instrument useful for other purposes seems to be dubious. One of the names that it has borne in English is goad; but most of our rods would be extravagantly long goads[1275]. Possibly the width of four oxen yoked abreast has exercised some influence upon its length[1276]. When a rod had once found acceptance, it must speedily have begun to convert that 'time-labour-unit,' the acre, into a measured space. Already in the land-books we read of acres of meadow[1277]; this is no longer a contradiction in terms. Still there can be no doubt that our acre, like the jurnale, Tagwerk, Morgen of the Continent, has at its root the tract that can be ploughed in a day, or in a forenoon:--in the afternoon the oxen must go to the pasture[1278]. Now, when compared with their foreign cousins, our statute perch is a long rod and our statute acre is a decidedly large 'day-work-unit[1279].' It seems to tell of plentiful land, sparse population and poor husbandry. This is of some importance. There is a good deal of evidence pointing to the conclusion that, whereas in the oldest days men really ploughed an acre in a forenoon, the current of agricultural progress made for a while towards the diminution of the space that was covered by a day's labour. In Ælfric's dialogue the ploughman complains that each day he must till 'a full acre or more[1280].' His successor, the poetic Piers, had only a half-acre to plough[1281]. In monastic cartularies which come from southern counties, where we have no reason to suspect exceptionally large acres, the villein seems often to plough less than an acre[1282]. Then that enlightened agriculturist, Walter of Henley, enters upon a long argument to prove to his readers that you really can plough seven-eighths of an acre in a forenoon, and even a whole acre if you are but engaged in that light kind of ploughing which does for a second fallowing[1283]. Five centuries later another enlightened agriculturist, Arthur Young, discovered that 'from North Leach, through Gloucestershire, Monmouthshire, and Glamorganshire, light and middling turnip-land etc.' was being ploughed at the rate of half an acre to one acre a day by teams of 'eight oxen; never less than six; or four and two horses.' This, he says, was being done 'merely in compliance with the obstinacy of the low people,' for 'the labourers will not touch a plough without the usual number of beasts in it[1284]'. Mr Young could not tell us of 'these vile remnants of barbarity without a great degree of disgust[1285]'. But we are grateful. We see that an acre of light land was the maximum that these 'low people' with their eight oxen would plough in a day, and we take it that at one time the voice of reforming science had urged men to diminish the area ploughed in a given time, to plough deeper and to draw their furrows closer. The old tradition was probably well content with a furrow for every foot. Walter of Henley proposed to put six additional furrows into the acre[1286]. Hereafter we shall see that some of the statistics given by Domesday Book fall in 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, rōd (rood) will mean one thing, rŏd 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?]