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'
THREE ESSAYS
IN THE
EARLY HISTORY OF ENGLAND.
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DOMESDAY BOOK AND BEYOND
THKEE ESSAYS
IN THE
EAELY HISTORY OF ENGLAND
BY
FREDERIC WILLIAM MAITLAND, LL.D.
FORMERLY DOWNING PBOFESSOB OP THE LAWS OF ENGLAND
IN THE UNIVERSITY OF CAMBRIDGE,
OF LINCOLN'S INN, BARRISTEB-AT-LAW.
CAMBRIDGE:
AT THE UNIVERSITY PRESS
1907
First Edition 1897.
Reprinted 1907.
PREFACE.
THE greater part of what is in this book was written in
order that it might be included in the History of English
Law before the Time of Edward I. which was published by Sir
Frederick Pollock and me in the year 1895. Divers reasons
dictated a change of plan. Of one only need I speak. I knew
that Mr Round was on the eve of giving to the world his
Feudal England, and that thereby he would teach me and
others many new lessons about the scheme and meaning of
Domesday Book. That I was well advised in waiting will be
evident to everyone who has studied his work. In its light
I have suppressed, corrected, added much. The delay has also
enabled me to profit by Dr Meitzen's Siedelung und Agrarwesen
der Germanen 1 , a book which will assuredly leave a deep mark
upon all our theories of old English history.
The title under which I here collect my three Essays is
chosen for the purpose of indicating that I have followed that
retrogressive method ' from the known to the unknown,' of
which Mr Seebohm is the apostle. Domesday Book appears
to me, not indeed as the known, but as the knowable. The
Beyond is still very dark : but the way to it lies through the
Norman record. A result is given to us : the problem is to
find cause and process. That in some sort I have been en-
deavouring to answer Mr Seebohm, I can not conceal from
myself or from others. A hearty admiration of his English
1 Siedelung und Agrarwesen der Westgermanen und Ostgermanen, der Kelten,
Eomer, Fiunen und Slawen, von August Meitzen, Berlin, 1895.
vi Preface.
Village Community is one main source of this book. That the
task of disputing his conclusions might have fallen to stronger
hands than mine I well know. I had hoped that by this time
Prof. Vinogradoff's Villainage in England would have had a
sequel. When that sequel comes (and may it come soon) my
provisional answer can be forgotten. One who by a few strokes
of his pen has deprived the English nation of its land, its
folk-land, owes us some reparation. I have been trying to
show how we can best bear the loss, and abandon as little as
may be of what we learnt from Dr Konrad von Maurer and
Dr Stubbs.
For my hastily compiled Domesday Statistics I have apo-
logized in the proper place. Here I will only add that I had
but one long vacation to give to a piece of work that would
have been better performed had it been spread over many years.
Mr Corbett, of King's College, has already shown me how by
a little more patience and ingenuity I might have obtained
some rounder and therefore more significant figures. But of
this it is for him to speak.
Among the friends whom I wish to thank for their advice
and assistance I am more especially grateful to Mr Herbert
Fisher, of New College, who has borne the tedious labour of
reading all my sheets, and to Mr W. H. Stevenson, of Exeter
College, whose unrivalled knowledge of English diplomatics
has been generously placed at my service.
F. W. M.
20 January, 1897.
CONTENTS,
PAGE
PREFACE *. v
TABLE OF CONTEXTS ....... vii
LIST OF ABBREVIATIONS xiv
ESSAY I.
DOMESDAY BOOK.
Domesday Book and its satellites, 1. Domesday and legal history, 2.
Domesday a geld book,. 3. The danegeld, 3. The inquest and the geld
system, 5. Importance of the geld, 7. Unstable terminology of the
record, 8. The legal ideas of century xi. 9.
1. Plan of the Survey, pp. 9 26.
The geographical basis, 9. The vill as the unit, 10. Modern and
ancient vills, 12. Omission of vills, 13. Fission of vills, 14. The
nucleated village and the vill of scattered steads, 15. Illustration by
maps, 16. Size of the vill, 17. Population of the vill, 19. Contrasts
between east and west, 20. Small vills, 20. Importance of the east, 21.
Manorial and non-manorial vills, 22. Distribution of free men and
serfs, 23. The classification of men, 23. The classes of men and the
geld system, 24. Our course, 25.
2. The Serfs, pp. 2636.
The servus of Domesday, 26. Legal position of the serf, 27. Degrees
of serfdom, 27. Predial element in serfdom, 28. The serf and criminal
law, 29. Serf and villein, 30. The serf of the Leges, 30. Return to
the servus of Domesday, 33. Disappearance of servi, 35.
3. The Villeins, pp. 3666.
The boors or coliberts, 36. The continental colibert, 37. The
English boor, 37. Villani, bordarii, cotarii, 38. The villein's tenement,
40. Villeins and cottiers, 41. Freedom and unfreedom of the villani,
41. Meaning of freedom, 42. The villein as free, 43. The villein as
viii Contents.
unfree, 46. Anglo-Saxon free-holding, 46. Free-holding and seignorial
rights, 47. The scale of free-holding, 49. Free land and immunity, 50.
Unfreedom of the villein, 50. Right of recapture, 50. Rarity of flight,
51. The villein and seignorial justice, 52. The villein and national
justice, 52. The villein and his land, 53. The villein's land and the
geld, 54. The villein's services, 56. The villein's rent, 57. The English
fur rif lanits, 58. Summary of the villein's position, 60. Depression of
the peasants, 61. The Normans and the rustics, 61. Depression of
the sokemen, 63. The peasants on the royal demense, 65.
4. The Sokemen, pp. 6679.
Sochemanni and liberi homines, 66. Lord and man, 67. Bonds
between lord and man, 67. Commendation, 69. Commendation and
protection, 70. Commendation and warranty, 71. Commendation and
tenure, 71. The lord's interest in commendation, 72. The seignory
over the commended, 74. Commendation and service, 74. Land-loans
and services, 75. The man's consuetudines, 76. Nature of consuetudmes,
78. Justiciary conswtudines, 78.
5. Sake and Soke, pp. 80 107.
Sake and soke, 80. Private jurisdiction in the Leges, 80. Soke in
the Leges Henrici, 81. Kinds of soke in the Leges, 82. The Norman
kings and private justice, 83. Sake and soke in Domesday, 84. Meaning
of soke, 84. Meaning of sake, 84. Soke as jurisdiction, 86. Seignorial
justice before the Conquest, 87. Soke as a regality, 89. Soke over
villeins, 90. Private soke and hundredal soke, 91. Huudredal and
manorial soke, 92. The seignorial court, 94. Soke and the earl's third
penny, 95. Soke and house-peace, 97. Soke over houses, 99. Vendible
soke, 100. Soke and mund, 100. Justice and jurisdiction, 102. Soke
and commendation, 103. Sokemen and 'free men,' 104. Holdings of
the sokemen, 106.
6. The Manor, pp. 107 128.
What is a manor ? 107. Manerium a technical term, 107. Manor and
hall, 109. Difference between manor and hall, 110. Size of the maneria,
110. A large manor, 111. Enormous manors Leominster, Berkeley,
Tewkesbury, Taunton, 112. Large manors in the Midlands, 114.
Townhouses and berewicks attached to manors, 114. Manor and soke,
115. Minute manors in the west, 116. Minute manors in the east, 117.
The manor as a peasant's holding, 118. Definition of a manor, 119
The manor and the geld, 120. Classification of men for the geld, 122.
Proofs of connexion of the manor with the geld, 122. Land gelds in a
manor, 124. Geld and hall, 124. The lord and the man's taxes, 125.
Distinction between villeins and sokemen, 125. The lord's subsidiary
liability, 126. Manors distributed to the Frenchmen, 127. Summary, 128.
7. Manor and VUl, pp. 129 150.
Manorial and non-manorial villa, 129. The vill of Orwell, 129. The
Wetherley hundred of Cambridgeshire, 131. The Wetherley sokemen,
34 The sokemen and seignorial justice, 135. Changes in the Wetherley
hundred, 135. Manonalism in Cambridgeshire, 136. The sokemen and
the manors, 137. Hertfordshire sokemen, 138. The small maneria, 138
The Danes and freedom, 139. The Danish counties, 139. The contrast
Contents. ix
between villeins and sokemen, 140. Free villages, 141. Village com-
munities, 142. The villagers as co-owners, 142. The waste land of the
vill, 143. Co-ownership of mills and churches, 144. The system of
virgates in a free village, 144. The virgates and inheritance, 145. The
farm of the vill, 146. Bound sums raised from the villages, 147. The
township and police law, 147. The free village and Norman government,
149. Organization of the free village, 149.
8. The Feudal Superstructure, pp. 150 172.
The higher ranks of men, 150. Dependent tenure, 151. Feudum, 152.
Alodium, 153. Application of the formula of dependent tenure, 154.
Military temire, 156. The army and the land, 157. Feudalism and
army service, 158. Punishment for default of service, 159. The new
military service, 160. The thegns, 161. Nature of thegnship, 163.
The thegns of Domesday, 165. Greater and lesser thegns, 165. The
great lords, 166. The king as landlord, 166. The ancient demesne, 167.
The comital manors, 168. Private rights and governmental revenues,
168. The English state, 170.
9. The Boroughs, pp. 172219.
Borough and village, 172. The borough in century xiii., 173. The
number of the boroughs, 173. The aid-paying boroughs of century xii,
174. List of aids, 175. The boroughs in Domesday, 176. The borough
as a county town, 178. The borough on no man's land, 178. Hetero-
geneous tenures in the boroughs, 179. Burgages attached to rural
manors, 180. The burgess and the rural manor, 181. Tenure of the
borough and tenure of land within the borough, 181. The king and
other landlords, 182.
The oldest burh, 183. The king's burh, 184. The special peace of
the burh, 184. The town and the burh, 185. The building of boroughs,
186. The shire and its borough, 186. Military geography, 187. The
Burghal Hidage, 187. The shire's wall-work, 188. Henry the Fowler
and the German burgs, 189. The shire thegns and their borough
houses, 189. The knights in the borough, 190. Burh-bot and castle-
guard, 191.
Borough and market, 192. Establishment of markets, 193. Moneyers
in the burh, 195. Burh and port, 195. Military and commercial
elements in the borough, 196. The borough and agriculture, 196.
Burgesses as cultivators, 197. Burgage tenure, 198. Eastern and
western boroughs, 199. Common property of the burgesses, 200. The
community as landholders, 200. Rights of common, 202. Absence of
communafism in the borough, 202. The borough community and its
lord, 203. The farm of the borough, 204. The sherift' and the farm of
the borough, 205. The community and the geld, 206. Partition of
taxes, 207. No corporation farming the borough, 208. Borough and
county organization, 209. Government of the boroughs, 209. The
borough court, 210. The law-men, 211. Definition of the borough,
212. Mediatized boroughs, 212. Boroughs on the king's land and
other boroughs, 215. Attributes of the borough, 216. Classification of
the boroughs, 217. National element in the boroughs, 219.
Contents.
ESSAY II.
ENGLAND BEFORE THE CONQUEST.
Object of this essay, 220. Fundamental controversies over Anglo-
Saxon history, 221. The Romanesque theory unacceptable, 222. Feudal-
ism as a normal stage, 223. Feudalism as progress and retrogress, 224.
Progress and retrogress in the history of legal ideas, 224. The contact
of barbarism and civilization, 225. Our materials, 226.
1. Book-land and the Land-book, pp. 226244.
The lands of the churches, 226. How the churches acquired their
lands, 227. The earliest land-books, 229. Exotic character of the
book, 230. The book purports to convey ownership, 230. The book
conveys a superiority, 231. A modern analogy, 232. Conveyance of
superiorities in early times, 233. What had the king to give? 234.
The king's alienable rights, 234. Royal rights in land, 235. The king's
feorm, 236. Nature of the feorm, 237. Tribute and rent, 239. Mixture
of ownership and superiority, 240. Growth of the seignory, 241. Book-
land and church-right, 242. Book-land and testament, 243.
2. Book-land and Folk-land, pp. 244 258.
What is folk-land? 244. Folk-land in the laws, 244. Folk-land in
the charters, 245. Land booked by the king to himself, 246. The
consent of the witan, 247. Consent and witness in the land-books,
247. Attestation of the earliest books, 248. Confirmation and at-
testation, 250. Function of the witan, 251. The king and the people's
land, 252. King's land and crown land, 253. Fate of the king's land
on his death, 253. The new king and the old king's heir, 254.
Immunity of the ancient demesne, 255. Rights of individuals in
national laud, 255. The alod, 256. Book-land and privilege, 257.
Kinds of land and kinds of right, 257.
3. Sake and Soke, pp. 258292.
Importance of seignorial justice, 258. Theqry of the modern origin
of seignorial justice, 258. Sake and soke in the Norman age, 259.
The Confessor's writs, 259. Cnut's writs, 260. Cnut's law, 261. The
book and the writ, 261. Diplomatics, 262. The Anglo-Saxon writ, 264.
Sake and soke appear when writs appear, 265. Traditional evidence of
sake and soke, 267. Altitonantis, 268. Criticism of the earlier books,
269. The clause of immunity, 270. Dissection of the words of im-
munity, 272. The trinoda necessitas, 273. The dngild, 274. The right
to wites and the right to a court, 275. The Taunton book, 276. The
immunists and the wite, 277. Justice and jurisdiction, 277. The
Frankish immunity, 278. Seignorial and ecclesiastical jurisdiction, 279.
Criminal justice of the church, 281. Antiquity of seignorial courts,
282. Justice, vassalage and tenure, 283. The lord and the accused
vassal, 284. The state, the lord and the vassal, 285. The landrlca as
immunist, 286. The immunist's rights over free men, 288. Sub-
delegation of justiciary rights, 289. Number of the immunists, 289.
Note : The Angild Clause, 290.
Contents. xi
4. Book-land and Loan-land, pp. 293 318.
The book and the gift, 293. Book-land and service, 294. Military
service, 295. Escheat of book-land, 295. Alienation of book-land, 297.
The heriot and the testament, 298. The gift and the loan, 299. The
precarium, 300. The English land-loan, 301. Loans of church land to
the great, 302. The consideration for the loan, 303. S'. Oswald's
loans, 303. Oswald's letter to Edgar, 304. Feudalism in Oswald's
law, 307. Oswald's riding-men, 308. Heritable loans, 309. Wardship
and marriage, 310. Seignorial jurisdiction, 310. Oswald's law and
England at large, 311. Inferences from Oswald's loans, 312. Economic
position of Oswald's tenants, 312. Loan-land and book-land, 313.
Book-land in the dooms, 314. Royal and other books, 315. The gift
and the loan, 317. Dependent tenure, 317.
5. The Growth of Seignorial Power, pp. 318 340.
Subjection of free men, 318. The royal grantee and the land, 318.
Provender rents and the manorial economy, 319. The church and the
peasants, 320. Growth of the manorial system, 321. Church-scot and
tithes, 321. Jurisdictional rights of the lord, 322. The lord and the
man's taxes, 323. Depression of the free ceorl, 324. The slaves, 325.
Growth of manors from below, 325.
Theories which connect the manor with the Roman villa, 326. The
Rectitudines, 327. Discussion of the Rectitudines, 328. The Tidenham
case, 329. The Stoke case, 330. Inferences from these cases, 332.
The villa and the vicus, 333. Manors in the land-books, 334. The
mansus and the manens, 335. The hide, 336. The strip-holding and
the villa, 337. The lord and the strips, 338. The ceorl and the
slave, 339. The condition of the Danelaw, 339.
6. The Village Community, pp. 340 356.
Free villages, 340. Ownership by communities and ownership by
individuals, 341. Co-ownership and ownership by corporations, 341.
Ownership and governmental power, 342. Ownership and subordinate
governmental power, 343. Evolution of sovereignty and ownership,
343. Communal ownership aa a stage, 344. The theory of normal
stages, 345.
Was land owned by village communities ? 346. Meadows, pastures
and woods, 348. The bond between neighbours, 349. Feebleness of
village communalism, 349. Absence of organization, 350. The German
village on conquered soil, 351. Development of kingly power, 351. The
free village in England, 352. The village meeting, 353. What might
have become of the free village, 353. Mark communities, 354. Inter-
commoning between vills, 355. Last words, 356.
xii Contents.
ESSAY TIL
THE HIDE.
What was the hide? 357. Importance of the question, 357. Hide
and manse in Bede, 358. Hide and manse in the land-books, 358.
The large hide and the manorial arrangement, 360. Our course, 361.
1. Measures and Fields, pp. 362 399.
Permanence and change in agrarian history, 362. Rapidity of
change in old times, 363. Devastation of villages, 363. Village
colonies, 365. Change of field systems, 365. Differences between
different shires, 366. New and old villages, 367.
History of land- measures, 368. Growth of uniform measures, 369.
Superficial measure, 370. The ancient elements of land measure, 372.
The German acre, 373. English acres, 373. Small and large acres, 374.
Anglo-Saxon rods and acres, 375. Customary acres and forest acres,
376. The acre and the day's work, 377. The real acres in the fields,
379. The culturae or shots, 379. Delimitation of shots, 380. Real and
ideal acres, 381. Irregular length of acres, 383. The sdiones or beds,
383. Acres divided lengthwise, 384. The virgate, 385. Yard and
yard-land, 385. The virgate a fraction of the hide, 385. The yard-land
in laws and charters, 386.
The hide as a measure, 387. The hide as a measure of arable, 388.
The hide of 120 acres, 389. Real and fiscal hides, 389. Causes of
divergence of fiscal from real hides, 390. Effects of the divergence, 392.
Acreage of the hide in later days, 393. The carucate and bovate, 395.
The ox-gang, 396. The fiscal carucate, 396. Acreage tilled by a plough,
397. Walter of Henley's programme of ploughing, 398.
2. Domesday Statistics, pp. 399 490.
Statistical Tables, 400403.
Domesday's three statements, 399. Northern formulas, 404. Southern
formulas, 405. Kentish formulas, 406. Relation between the three
statements, 406. Introduction of statistics, 407. Explanation of
statistics, 407. Acreage, 407. Population, 408. Danegeld, 408. Hides,
carucates, sulungs, 408. Reduced hidage, 410. The teamlands, 410.
The teams, 411. The values, 411. The table of ratios, 411. Im-
perfection of statistics, 412. Constancy of ratios, 413.
The team, 413. Variability of the caruca, 414. Constancy of the
caruca, 414. The villein's teams, 415. The villein's oxen, 416. Light
and heavy ploughs, 417. The team of Domesday and other docu-
ments, 417.
The teamland, 418. Fractional parts of the teamland, 418. Land
for oxen and wood for swine, 419. The teamland no areal unit, 419.
The teamlands of Great and the teams of Little Domesday, 420. The
Leicestershire formulas, 420. Origin of the inquiry touching the team-
lands, 421. Modification of the inquiry, 423. The potential teams, 423.
Normal relation between teams and teamlands, 424. The land of
Contents. xiii
deficient teams, 425. Actual and potential teamlands, 426. The land
of excessive teams, 427. Digression to East Anglia, 429. The teamland
no areal measure, 431. Eyton's theory, 431. Domesday's lineal measure,
432. Measured teamlands, 433.
Amount of arable in England, 435. Decrease of arable, 436. The
food problem, 436. What was the population ? 436. What was the
field-system ? 437. What was the acre's yield ? 437. Consumption of
beer, 438. The Englishman's diet, 440. Is the arable superabundant I
441. Amount of pasturage, 441. Area of the villages, 443. Produce and
value, 444. Varying size of acres, 445. The teamland in Cambridge-
shire, 445.
The hides of Domesday, 446. Eelation between hides and teamlands,
447. Uuhidated estates, 448. Beneficial hidation, 448. Effect of
privilege, 449. Divergence of hide from teamland, 450. Partition of
the geld, 451. Distribution of hides among counties and hundreds, 451.
The hidage of Worcestershire, 451. The County Hidage, 455. Its
date, 456. The Northamptonshire Geld Roll, 457. Credibility of The
County Hidage, 458. Reductions of hidage, 458. The county quotas,
459. The hundred and the hundred hides, 459. Comparison of
Domesday hidage with Pipe Rolls, 460. Under-rated and over-rated
counties, 461 Hidage and value, 462. One pound, one hide, 465.
Equivalence of pound and hide, 465. Cases of under-taxation, 466.
Kent, 466. Devon and Cornwall, 467. Cases of over-taxation, 468.
Leicestershire, 468. Yorkshire, 469. Equity and hidage, 470. Dis-
tribution of hides and of teamlands, 471. Area and value as elements
of geldability, 472. The equitable teamland, 473. Artificial valets, 473.
The new assessments of Henry II., 473.
Acreage of the fiscal hide, 475. Equation between hide and acres,
475. The hide of 120 acres, 476. Evidence from Cambridgeshire, 476.
Evidence from the Isle of Ely, 476. Evidence from Middlesex, 477.
Meaning of the Middlesex entries, 478. Evidence in the Geld Inquests,
478. Result of the evidence, 480. Evidence from Essex, 480. Acreage
of the fiscal carucate, 483. Acreage of the fiscal sulung, 484. Kemble's
theory, 485. The ploughland and the plough, 486. The Yorkshire
carucates, 487. Relation between teamlands and fiscal carucates, 487.
The fiscal hide of 120 acres, 489. Antiquity of the large hide, 489.
3. Beyond Domesday, pp, 490 520.
The hide beyond Domesday, 490. Arguments in favour of small
hides, 490. Continuity of the hide in the land-books, 491. Examples
from charters of Chertsey, 492. Examples from charters of Malmesbury,
492. Permanence of the hidation, 493. Gifts of villages, 494. Gifts
of manses in villages, 495. The largest gifts, 496. The Winchester
estate at Chilcombe, 496. The Winchester estates at Dowuton and
Taunton, 498. Kemble and the Taunton estate, 499. Difficulty of
identifying parcels, 500. The numerous hides in ancient documents,
501. The Burghal Hidage, 502. The Tribal Hidage, 506. Bede's
hidage, 508. Bede and the land-books, 509. Gradual reduction of
hidage, 510. Over-estimates of hidage, 510. Size of Bede's hide, 511.
Evidence from lona, 512. Evidence from Selsey, 513. Conclusion in
favour of the large hide, 515. Continental analogies, 515. The German
Hufe, 515. The Konigshufe, 516. The large hide on the continent,
517. The large hide not too large, 518. The large hide and the
manor, 519. Last words, 520.
LIST OF ABBREVIATIONS.
B. = Birch, Cartularium Saxonicum, London, 1885-7-93.
D. B. = Domesday Book.
E. = Earle, Land Charters, Oxford, 1888.
E. H. R. = English Historical Review.
H. & S. = Haddan and Stubbs, Councils and Ecclesiastical Documents,
vol. iii, Oxford, 1871.
K. = Kemble, Codex Diplomaticus Mvi Saxonici, London, 1839-48.
T. = Thorpe, Diplomatarium Anglicanum, London, 1865.
ADDENDUM.
p. 347, note 4. Instances of the periodic reallotment of the whole land of a
vill, exclusive of houses and crofts, seem to have been not unknown in the north
of England. Here the reallotment is found in connexion with a husbandry
which knows no permanent severance of the arable from the grass-land, but
from time to time ploughs up a tract and after a while allows it to become
grass-land once more. See F. W. Dendy, The Ancient Farms of Northumber-
land, Archaeologia Aeliaua, Vol. xvi. I have to thank Mr Edward Bateson for
a reference to this paper.
ESSAY I.
DOMESDAY BOOK.
AT midwinter in the year 1085 William the Conqueror wore Domesday
his crown at Gloucester and there he had deep speech with his its satei-
wise men. The outcome of that speech was the mission through- lltes '
out all England of barons/ ' legates ' or 'justices ' charged with
the duty of collecting from the verdicts of the shires, the
hundreds and the vills a descriptio of his new realm. The out-
come of that mission was the descriptio preserved for us in two
manuscript volumes, which within a century after their making
had already acquired the name of Domesday Book. The second
of those volumes, sometimes known as Little Domesday, deals
with but three counties, namely Essex, Norfolk and Suffolk,
while the first volume comprehends the rest of England. Along
with these we must place certain other documents that are
closely connected with the grand inquest. We have in the
so-called Inquisitio Comitatus Cantabrigiae, a copy, an imperiect
copy, of the verdicts delivered by the Cambridgeshire jurors,
and this, as we shall hereafter see, is a document of the highest
value, even though in some details it is not always very trust-
worthy 1 . We have in the so-called Inquisitio Eliensis an
account of the estates of the Abbey of Ely in Cambridgeshire,
Suffolk and other counties, an account which has as its ultimate
source the verdicts of the juries and which contains some
1 Inquisitio Comitatus Cantabrigiae, ed. N. E. Hamilton. When, as some-
times happens, the figures in this record differ from those given in Domesday
Book, the latter seem to be in general the more correct, for the arithmetic is
better. Also it seems plain that the compilers of Domesday had, even for
districts comprised in the Inquisitio, other materials besides those that the
luquisitio contains. For example, that document says nothing of some of the
royal manors. [Since this note was written, Mr Eound, Feudal England,
pp. 10 ff. has published the same result after an elaborate investigation.]
Domesday Book.
particulars which were omitted from Domesday Book 1 . We
have in the so-called Exon Domesday an account of Cornwall
and Devonshire and of certain lands in Somerset, Dorset and
Wiltshire ; this also seems to have been constructed directly or
indirectly out of the verdicts delivered in those counties, and it
contains certain particulars about the amount of stock upon
the various estates which are omitted from what, for distinction's
sake, is sometimes called the Exchequer Domesday 2 . At the
beginning of this Exon Domesday we have certain accounts
relating to the payment of a great geld, seemingly the geld of
six shillings on the hide that William levied in the winter of
1083-4, two years before the deep speech at Gloucester 3 .
Lastly, in the Northamptonshire Geld Roll 4 we have some
precious information about fiscal affairs as they stood some few
years before the survey 5 .
Domesday Such in brief are the documents out of which, with some
idstory a small help from the Anglo-Saxon dooms and land-books, from
the charters of Norman kings and from the so-called Leges of
the Conqueror, the Confessor and Henry I., some future historian
may be able to reconstruct the land-law which obtained in the
conquered England of 1086, and (for our records frequently
speak of the tempus Regis Edwardi) the unconquered England
of 1065. The reflection that but for the deep speech at Glou-
cester, but for the lucky survival of two or three manuscripts,
he would have known next to nothing of that law, will make
him modest and cautious. At the present moment, though
much has been done towards forcing Domesday Book to
yield its meaning, some of the legal problems that are raised
by it, especially those which concern the time of King Edward,
have hardly been stated, much less solved. It is with some
hope of stating, with little hope of solving them that we begin
this essay. If only we can ask the right questions we shall
1 This is printed in D. B. vol. iv. and given by Hamilton at the end of his
Inq. Com. Cantah. As to the manner in which it was compiled see Bound,
feudal England, 133 ff.
2 The Exon Domesday is printed in D. B. vol. iv
3 Round, Domesday Studies, i. 91 : 'I am tempted to believe that these geld
rolls in the form in which we now have them were compiled at Winchester after
the close of Easter 1084, by the body which was the germ of the future
Exchequer.'
4 Printed by Ellis, Introduction to Domesday, i. 184.
B Round, Feudal England, 117.
Domesday Book.
have done something for a good end. If English history is to
be understood, the law of Domesday Book must be mastered.
We have here an absolutely unique account of feudalism in
two different stages of its growth, the more trustworthy, though
the more puzzling, because it gives us particulars and not
generalities.
Puzzling enough it certainly is, and this for many reasons.
Our task may be the easier if we state some of those reasons at
the outset.
To say that Domesday Book is no collection of laws or Domesday
treatise on law would be needless. Very seldom does it state
any rule in general terms, and when it does so we shall usually
find cause for believing that this rule is itself an exception, a
local custom, a provincial privilege. Thus, if we are to come by
general rules, we must obtain them inductively by a comparison
of many thousand particular instances. But further, Domesday
Book is no register of title, no register of all those rights and
facts which constitute the system of land-holdership. One great
purpose seems to mould both its form and its substance ; it is a
geld-book.
When Duke William became king of the English, he found Danegeid.
(so he might well think) among the most valuable of his newly
acquired regalia, a right to levy a land-tax under the name of
geld or danegeld. A detailed history of that tax cannot be
written. It is under the year 991 that our English chronicle
first mentions a tribute paid to the Danes 1 ; 10,000 was then
paid to them. In 994 the yet larger sum of 16,000 2 was
levied. In 1002 the tribute had risen to 24,000 3 , in 1007 to
30,000 4 , in 1009 East Kent paid 3,000 5 ; 21,000 was raised
in 1014 6 ; in 1018 Cnut when newly crowned took 72,000
besides 11,000 paid by the Londoners 7 ; in 1040 Harthacnut
took 21,099 besides a sum of 11,048 that was paid for thirty-
two ships 8 . With a Dane upon the throne, this tribute seems to
have become an occasional war-tax. How often it was levied
we cannot tell ; but that it was levied more than once by the
Confessor is not doubtful 9 . We are told that he abolished it
1 Earle, Two Chronicles, 130-1. 2 Ibid. 132-3. 8 Ibid. 137.
4 Ibid. 141. 6 Ibid. 142. 6 Ibid. 151. 7 Ibid. 160-1.
8 Ibid. 167.
9 There is a valuable paper on this subject, A Short Account of Danegeld [by
P. C. Webb] published in 1756.
12
Domesday Book.
in or about the year 1051, some eight or nine years after his
accession, some fifteen before his death. No sooner was William
crowned than 'he laid on men a geld exceeding stiff. ' In the
next year ' he set a mickle geld ' on the people. In the winter
of 1083-4 he raised a geld of 72 pence (6 Norman shillings)
upon the hide. That this tax was enormously heavy is plain.
Taking one case with another, it would seem that the hide was
frequently supposed to be worth about 1 a year and there were
many hides in England that were worth far less. But grievous as
was the tax which immediately preceded the making of the
survey, we are not entitled to infer that it was of unprecedented
severity. It brought William but 415 or thereabouts from
Dorset and 510 or thereabouts from Somerset 1 . Worcestershire
was deemed to contain about 1200 hides and therefore, even if
none of its hides had been exempted, it would have contributed
but 360. If the huge sums mentioned by the chronicler had
really been exacted, and that too within the memory of men
who were yet living, William might well regard the right to
levy a geld as the most precious jewel in his English crown.
To secure a due and punctual payment of it was worth a
gigantic effort, a survey such as had never been made and a record
such as had never been penned since the grandest days of the
old Roman Empire. But further, the assessment of the geld
sadly needed reform. Owing to one cause and another, owing
to privileges and immunities that had been capriciously granted,
owing also, so we think, to a radically vicious method of com-
puting the geldable areas of counties and hundreds, the old
assessment was full of anomalies and iniquities. Some estates
were over-rated, others were scandalously under-rated. That
William intended to correct the old assessment, or rather to
sweep it away and put a new assessment in its stead, seems
highly probable, though it has not been proved that either
he or his sons accomplished this feat 2 . For this purpose, how-
ever, materials were to be collected which would enable the
royal officers to decide what changes were necessary in order
that all England might be taxed in accordance with a just and
uniform plan. Concerning each estate they were to know the
1 D. B. iv. 26, 489.
8 In 1194 the tax for Richard's ransom seems, at least in Wiltshire, to have
been distributed in the main according to the assessment that prevailed in 1084;
Rolls of the King's Court (Pipe Roll Soc.) i. Introduction, p. xxiv.
Domesday Booh
number of geldable units (' hides ' or ' carucates ') for which it
had answered in King Edward's day, they were to know the
number of plough oxen that there were upon it, they were to
know its true annual value, they were to know whether that
value had been rising or falling during the past twenty years.
Domesday Book has well been called a rate book, and the task
of spelling out a land law from the particulars that it states
is not unlike the task that would lie before any one who
endeavoured to construct our modern law of real property out
of rate books, income tax returns and similar materials. All
the lands, all the land-holders of England may be brought before
us, but we are told only of such facts, such rights, such legal
relationships as bear on the actual or potential payment of geld.
True, that some minor purposes may be achieved by the king's
commissioners, though the quest for geld is their one main
object. About the rents and renders due from his own demesne
manors the king may thus obtain some valuable information.
Also he may learn, as it were by the way, whether any of his
barons or other men have presumed to occupy, to 'invade,'
lands which he has reserved for himself. Again, if several
persons are in dispute about a tract of ground, the contest may
be appeased by the testimony of shire and hundred, or may be
reserved for the king's audience ; at any rate the existence of
an outstanding claim may be recorded by the royal commis-
sioners Here and there the peculiar customs of a shire or a
borough will be stated, and incidentally the services that certain
tenants owe to their lords may be noticed. But all this is done
sporadically and unsystematically. Our record is no register
of title, it is no feodary, it is no custumal, it is no rent roll ; ifc
is a tax book, a geld book.
We say this, not by way of vain complaint against its The survey
meagreness, but because in our belief a care for geld and for all ^"i
that concerns the assessment and payment of geld colours far tem<
more deeply than commentators have usually supposed the
information that is given to us about other matters. We
should not be surprised if definitions and distinctions which at
first sight have little enough to do with fiscal arrangements, for
example the definition of a manor and the distinction between
a villein and a ' free man,' involved references to the apportion-
ment and the levy of the land-tax. Often enough it happens
that legal ideas of a very general kind are defined by fiscal
Domesday Book.
rules ; for example, our modern English idea of ' occupation '
has become so much part and parcel of a system of assessment
that lawyers are always ready to argue that a certain man must
be an ' occupier ' because such men as he are rated to the relief
of the poor. It seems then a fair supposition that any line that
Domesday Book draws systematically and sharply, whether it
be between various classes of men or between various classes of
tenements, is somehow or another connected with the main
theme of that book geldability, actual or potential.
Weight of Since we have mentioned the stories told by the chronicler
the dane- . , ... .
geld. about the tribute paid to the Danes, we may make a comment
upon them which will become of importance hereafter. Those
stories look true, and they seem to be accepted by modern
historians. Had we been told just once that some large number
of pounds, for example 60,000, was levied, or had the same
round sum been repeated in year after year, we might well have
said that such figures deserved no attention, and that by
60,000 our annalist merely meant a big sum of money.
But, as will have been seen, he varies his figures from year to
year and is not always content with a round number; he
speaks of 21,099 and of 11, 048 \ We can hardly therefore
treat his statements as mere loose talk and are reluctantly
driven to suppose that they are true or near the truth. If this
be so, then, unless some discovery has yet to be made in the
history of money, no word but ' appalling ' will adequately
describe the taxation of which he speaks. We know pretty
accurately the amount of money that became due when Henry I.
or Henry II. imposed a danegeld of two shillings on the hide.
The following table constructed from the pipe rolls will show
the sum charged against each county. We arrange the shires
in the order of their indebtedness, for a few of the many
caprices of the allotment will thus be visible, and our table may
be of use to us in other contexts 2 .
1 The statement in ^Ethelred, n. 7 (Schmid, p. 209) as to a payment of
22,000 is in a general way corroborative of the chronicler's large figures.
2 The figures will be given more accurately on a later page.
Domesday Book.
APPROXIMATE CHARGE OF A DANEGELD OF Two SHILLINGS ON THE
HIDE IN THE MIDDLE OF THE TWELFTH CENTURY.
Wiltshire
Norfolk
Somerset
Lincoln
Dorset
Oxford
Essex
Suffolk
Sussex
Bucks
Berks
Gloucester
S. Hants
Surrey
York
Warwick
N. Hants
Salop
Now be it understood that these figures do not show the The geld ot
amount of money that Henry I. and Henry II. could obtain by
a danegeld. They had to take much less. When it was last
levied, the tax was not bringing in 3500, so many were tha
churches and great folk who had obtained temporary or perma-
nent exemptions from it. We will cite Leicestershire for
example. The total of the geld charged upon it was almost
exactly or quite exactly 100. On the second roll of Henry II.'s
reign we find that 25. 7s. 6d. have been paid into the trea-
sury, that 22. 8s. 3d. have been ' pardoned ' to magnates and
templars, that 51. 8s. 2d. are written off in respect of waste,
and that 16s. Od. are still due. On the eighth roll the
account shows that 62. 12s. *ld. have been paid and that
37. 6s. 9d. have been ' pardoned.' No, what our table displays
is the amount that would be raised if all exemptions were
disregarded and no penny forborne. And now let us turn
back to the chronicle and (not to take an extreme example)
read of 30,000 being raised. Unless we are prepared to bring
389
330
278
Cambridge
Derby and Nottingham
Hertford
114
110
110
266
Bedford
110
248
Kent
105
242
Devon
104
236
Worcester
101
235
Leicester
100
210
Hereford
94
205
Middlesex
85
202
Huntingdon
71
190
Stafford
44
180
Cornwall
23
177
Rutland
12
160
Northumberland
100
129
Cheshire 1
120
118
Total
5198
1 Cheshire pays no geld to the king. This loss is compensated by a sum
which is sometimes exacted from Northumberland.
Domesday Book.
against the fathers of English history a charge of repeated,
wanton and circumstantial lying, we shall think of the danegeld
of yEthelred's reign and of Cnut's as of an impost so heavy that
it was fully capable of transmuting a whole nation. Therefore
the lines that are drawn by the incidence of this tribute will be
deep and permanent; but still we must remember that primarily
they will be fiscal lines.
Unstable Then again, we ought not to look to Domesday Book for a
logy of the settled and stable scheme of technical terms. Such a scheme
rvey ' could not be established in a brief twenty years. About one
half of the technical terms that meet us, about one half of the
terms which, as we think, ought to be precisely defined, are, we
may say, English terms. They are ancient English words, or
they are words brought hither by the Danes, or they are Latin
words which have long been in use in England and have
acquired special meanings in relation to English affairs. On
the other hand, about half the technical terms are French.
Some of them are old Latin words which have acquired special
meanings in France, some are Romance words newly coined in
France, some are Teutonic words which tell of the Frankish
conquest of Gaul. In the one great class we place scira,
hundredum, wapentac, hida, berewica, inland, haga, soka, saka,
geldum, gablum, scotum, heregeat, gersuma, thegnus, sochemannus,
burns, coscet ; in the other comitatus, carucata, virgata, bovata,
arpentum, manerium, feudum, alodium, homa.gium, relevium,
baro, vicecomes, vavassor, villanus, bordarius, colibertus, hospes.
I i, is not in twenty years that a settled and stable scheme can
be formed out of such elements as these. And often enough it
is very difficult for us to give just the right meaning to some
simple Latin word. If we translate miles by soldier or warrior,
this may be too indefinite ; if we translate it by knight, this
may be too definite, and yet leave open the question whether
we are comparing the miles of 1086 with the cniht of uncon-
quered England or with the knight of the thirteenth century.
If we render vicecomes by sheriff we are making our sheriff too
little of a vicomte. When comes is before us we have to choose
between giving Britanny an earl, giving Chester a count, or
offending some of our comites by invidious distinctions. Time
will show what these words shall mean. Some will perish in
the struggle for existence; others have long and adventurous
careers before them. At present two sets of terms are rudely
Plan of the Survey.
intermixed; the time when they will grow into an organic
whole is but beginning.
To this we must add that, unless we have mistaken the Legal ideas
general drift of legal history, the law implied in Domesday
Book ought to be for us very difficult law, far more difficult
than the law of the thirteenth century, for the thirteenth
century is nearer to us than is the eleventh. The grown man
will find it easier to think the thoughts of the school-boy than
to think the thoughts of the baby. And yet the doctrine that
our remote forefathers being simple folk had simple law dies
hard. Too often we allow ourselves to suppose that, could we
but get back to the beginning, we should find that all was
intelligible and should then be able to watch the process
whereby simple ideas were smothered under subtleties and
technicalities. But it is not so. Simplicity is the outcome of
technical subtlety ; it is the goal not the starting point. As we
go backwards the familiar outlines become blurred ; the ideas
become fluid, and instead of the simple we find the indefinite.
But difficult though our task may be, we must turn to it.
1. Plan of the Survey.
England was already mapped out into counties, hundreds or The geo-
wapentakes and vills. Trithings or ridings appear in Yorkshire
and Lincolnshire, lathes in Kent, rapes in Sussex, while leets
appear, at least sporadically, in Norfolk 1 . These provincial
peculiarities we must pass by, nor will we pause to comment at
any length on the changes in the boundaries of counties and of
hundreds that have taken place since the date of the survey.
Though these changes have been many and some few of them
have been large 2 , we may still say that as a general rule the
political geography of England was already stereotyped. And
we see that already there are many curious anomalies, 'de-
tached portions ' of counties, discrete hundreds, places that are
extra-hundredal 3 , places that for one purpose are in one county
1 D. B. ii. 109 b : ' Hundret de Grenehou 14 letis.' Ib. 212 b : ' Hundret et
Dim. de Clakelosa de 10 leitis.' Bound, Feudal England, 101.
2 Some of them are mentioned by Ellis, Introduction, i. 34-9.
3 D. B. i. 184 b : ' Haec terra non geldat nee consuetudinem dat nee in
aliquo hundredo iacet ' ; i. 157 ' Haec terra nunquatn geldavit nee alicui
10 Domesday Book.
and for another purpose in another county 1 . We see also that
proprietary rights have already been making sport of arrange-
ments which in our eyes should be fixed by public law. Earls,
sheriffs and others have enjoyed a marvellous power of taking a
tract of land out of one district and placing it, or ' making it
lie' in another district 2 . Land is constantly spoken of as
though it were the most portable of things; it can easily be
taken from one vill or hundred and be added to or placed in or
caused to lie in another vill or hundred. This ' notional mova-
bility ' of land, if we may use such a term, will become of
importance to us when we are studying the formation of manors.
The vm as For the present, however, we are concerned with the general
phicaiumt. truth that England is divided into counties, hundreds or wapen-
takes and vills. This is the geographical basis of the survey.
That basis, however, is hidden from us by the form of our
record. The plan adopted by those who fashioned Domesday
Book out of the returns provided for them by the king's
commissioners is a curious, compromising plan. We may say
that in part it is geographical, while in part it is feudal or
proprietary. It takes each county separately and thus far it
is geographical ; but within the boundaries of each county it
arranges the lands under the names of the tenants in chief who
hold them. Thus all the lands in Cambridgeshire of which
Count Alan is tenant in chief are brought together, no matter
that they lie scattered about in various hundreds. Therefore
it is necessary for us to understand that the original returns
reported by the surveyors did not reach the royal treasury in
this form. At least as regards the county of Cambridge, we
can be certain of this. The hundreds were taken one by one ;
they were taken in a geographical order, and not until the
hundredo pertinet nee pertinuit ' ; i. 357 b ' Hae duae carucatae non sunt in
numero alicuius hundred! neque habent pares in Lincolescyra.'
1 D. B. i. '207 b : ' Jacet in Bedefordscira set geldum dat in Huntedonscire ' ;
i. 61 b ' Jacet et appreciata est in Gratentun quod est in Oxenefordscire et
tamen dat scotum inBerchescire'; i. 132 b, the manor of Weston 'lies in ' Hitchin
which is in Hertfordshire, but its wara 'lies in' Bedfordshire, i.e. it pays geld,
it ' defends itself in the latter county ; i. 189 b, the wara of a certain hide ' lies
in ' Hinxton which is in Cambridgeshire, but the land belongs to the manor of
Chesterford and therefore is valued in Essex. D. B. i. 178 : five hides ' geld and
plead ' in Worcestershire, but pay their farm in Herefordshire.
2 D. B. i. 157 b : ' Has [terras in Oxenefordscire] coniunxit terrae suae in
Glowecestrescire' ; i. 209 b ' foris misit de hundredo ubi se defendebat T. B. E.' ;
i. 50 ' et misit foras comitatum et misit in Wiltesire.' See also Ellis, i. '66.
Plan of the Survey. 11
justices had learned all that was to be known of Staplehow
hundred did they call upon the jurors of Cheveley hundred for
their verdict. That such was their procedure we might have
guessed even had we not been fortunate enough to have a copy
of the Cambridgeshire verdicts ; for, though the commissioners
seem to have held but one moot for each shire, still it is plain
that each hundred was represented by a separate set of jurors 1 .
But from these Cambridgeshire verdicts we learn what other-
wise we could hardly have known. Within each hundred the
survey was made by vills 2 . If we suppose the commissioners
charging the jurors we must represent them as saying, not ' Tell
us what tenants in chief have lands in your hundred and how
much each of them holds/ but ' Tell us about each vill in your
hundred, who holds land in it.' Thus, for example, the men of
the Armingford hundred are called up. They make a separate
report about each vill in it. They begin by stating that the
vill is rated at a certain number of hides and then they proceed
to distribute those hides among the tenants in chief. Thus, for
example, they say that Abington was rated at 5 hides, and that
those 5 hides are distributed thus 3 :
hides virgates
Hugh Pincerna holds of the bishop of Winchester 2| %
The king
Ralph and Robert hold of Hardouin de Eschalers 1 1^
Earl Roger 1
Picot the sheriff ^
Alwin Hamelecoc tlie bedel holds of the king
5
Now in Domesday Book we must look to several different
pages to get this information about the vill of Abington, to
one page for Earl Roger's land, to another page for Picot's land,
1 See Hound, Feudal England, p. 118. Mr Eound seems to think that the
commissioners made a circuit through the hundreds. I doubt they did more
than their successors the justices in eyre were wont to do, that is, they held in
the shire-town a moot which was attended by (1) the magnates of the shire who
spoke for the shire, (2) a jury from every hundred, (3) a deputation of villani
from every township. See the Yorkshire and Lincolnshire Clamores (i. 375)
where we may find successive entries beginning with (a) Scyra testatur, (b) West-
reding testatur, (c) Testatur wapentac. Strikingly similar entries are found on
the eyre rolls. As Sir F. Pollock (Eng. Hist. Rev. xi. 213) remarks, it is mis-
leading to speak of the Domesday ' survey'; Domesday Inquest would be better.
2 See Eound, Feudal England, p. 44.
8 Inquis. Com. Cantab. 60.
12 Domesday Book.
and we may easily miss the important fact that this vill of
Abington has been rated as a whole at the neat, round figure of
5 hides. And then we see that the whole hundred of Arming-
ford has been rated at the neat, round figure of 100 hides, and
has consisted of six villa rated at 10 hides apiece and eight vills
rated at 5 hides apiece 1 . Thus we are brought to look upon
the vill as a unit in a system of assessment. All this is
concealed from us by the form of Domesday Book,
stability of When that book mentions the name of a place, when it
says that Roger holds Sutton or that Ralph holds three hides
in Norton, we regard that name as the name of a vill ; it may
or may not be also the name of a manor. Speaking very
generally we may say that the place so named will in after
times be known as a vill and in our own day will be a civil
parish. No doubt in some parts of the country new vills have
been created since the Conqueror's time. Some names that
occur in our record fail to obtain a permanent place on the roll
of English vills, become the names of hamlets or disappear
altogether; on the other hand, new names come to the front.
Of course we dare not say dogmatically that all the names
mentioned in Domesday Book were the names of vills; very
possibly (if this distinction was already known) some of them
were the names of hamlets ; nor, again, do we imply that the villa,
of 1086 had much organization ; but a place that is mentioned
in Domesday Book will probably be recognized as a vill in the
thirteenth, a civil parish in the nineteenth century. Let us
take Cambridgeshire by way of example. Excluding the Isle
of Ely, we find that the political geography of the Conqueror's
reign has endured until our own time. The boundaries of the
hundreds lie almost where they lay, the number of vills has
hardly been increased or diminished. The chief changes
amount to this : A small tract on the east side of the county
containing Exning and Bellingham has been made over to
Suffolk ; four other names contained in Domesday no longer
stand for parishes, while the names of five of our modern
parishes one of them is the significant name of Newton
are not found there 2 . But about a hundred and ten vills that
1 See the table in Bound, Feudal England, p. 50. I had already selected
this beautiful specimen before Mr Bound's book appeared. He has given several
others that are quite as neat.
2 Of course we take no account of urban parishes.
Plan of the Survey. 13
were vills in 1086 are vills or civil parishes at the present day,
and in all probability they then had approximately the same
boundaries that they have now.
This may be a somewhat too favourable example of Omission
of vills.
permanence and continuity. Of all counties Cambridgeshire
is the one whose ancient geography can be the most easily
examined ; but wherever we have looked we have come to the
conclusion that the distribution of England into vills is in the
main as old as the Norman conquest 1 . Two causes of difficulty
may be noticed, for they are of some interest. Owing to what
we have called the ' notional movability ' of land, we never can
be quite sure that when certain hides or acres are said to be in
or lie in a certain place they are really and physically in that
place. They are really in one village, but they are spoken of
as belonging to another village, because their occupants pay
their geld or do their services in the latter. Manorial and fiscal
geography interferes with physical and villar geography. We
have lately seen how land rated at five hides was comprised, as
a matter of fact, in the vill of Abington ; but of those five
hides, one virgate ' lay in ' Shingay, a half-hide ' lay in '
Litlington while a half- virgate ' lay and had always lain ' in
Morden 2 . This, if we mistake not, leads in some cases to an
omission of the names of small vills. A great lord has a
compact estate, perhaps the whole of one of the small southern
hundreds. He treats it as a whole, and all the land that he has
there will be ascribed to some considerable village in which he
has his hall. We should be rash in supposing that there were
no other villages on this land. For example, in Surrey there
is now-a-days a hundred called Farnham which comprises the
parish of Farnham, the parish of Frensham and some other
villages. If we mistake not, all that Domesday Book has to
say of the whole of this territory is that the Bishop of Winchester
holds Farnham, that it has been rated at 60 hides, that it has
been worth the large sum of 65 a year and that there are so
many tenants upon it 3 . We certainly must not draw the
inference that there was but one vill in this tract. If the
bishop is tenant in chief of the whole hundred and has become
1 Eyton's laborious studies have made this plain as regards some counties
widely removed from each other ; still, e.g. in his book on Somerset, he has now
and again to note that names which appear in D. B. are obsolete.
8 Inq. Com. Cant. 00-1. D. B. i. 31.
14 Domesday Book.
responsible for all the geld that is levied therefrom, there is
no great reason why the surveyors should trouble themselves
about the vills. Thus the simple Episcopus tenet Fernelnini
may dispose of some 25,000 acres of land. So the same bishop
has an estate at Chilcombe in Hampshire ; but clearly the
name Ciltecumbe covers a wide territory for there are no less
than nine churches upon it 1 . We never can be very certain
about the boundaries of these large and compact estates.
Fission of A second cause of difficulty lies in the fact that in com-
paratively modern times, from the twelfth century onwards, two
or three contiguous villages will often bear the same name and
be distinguished only by what we may call their surnames
thus Guilden Morden and Steeple Morden, Stratfield Saye,
Stratfield Turgis, Stratfield Mortimer, Tolleshunt Knights,
Tolleshunt Major, Tolleshunt Darcy. Such cases are common ;
in some districts they are hardly exceptional. Doubtless they
point to a time when a single village by some process of
colonization or subdivision become two villages. Now Domes-
day Book seldom enables us to say for certain whether the
change has already taken place. In a few instances it marks
off the little village from the great village of the same name 2 .
In some other instances it will speak, for example, of Mordune
and Mordune Alia, of Emingeforde and Emingeforde Alia, or
the like, thus showing both that the change has taken place,
and also that it is so recent that it is recognized only by very
clumsy terms. In Cambridgeshire, since we have the original
verdicts, we can see that the two Mordens are already distinct ;
the one is rated at ten hides, the other at five 3 . On the other
hand, we can see that our Great and Little Shelford are rated
as one vill of twenty hides 4 , our Castle Camps and Shudy
Camps as one vill of five hides 5 . Elsewhere we are left to
guess whether the fission is complete, and the surnames that
many of our vills ultimately acquire, the names of families
which rose to greatness in the twelfth and thirteenth centuries,
will often suggest that the surveyors saw but one vill where we
see two 6 . However, the broad truth stands out that England
' D. B. i. 41. We shall return to this matter hereafter.
2 A good many cases will be found in Essex and Suffolk.
8 Inq. Com. Cantab. 51, 53. 4 Ibid. 47. B Ibid. 29.
* Maitland, Surnames of English Villages, Archaeological Review, iv. 233.
Plan of the Survey. 15
was divided into vills and that in general the vill of Domesday
Book is still a vill in after days 1
The ' vill ' or ' town ' of the later middle ages was, like the The nucie-
' civil parish' of our own day, a tract of land with some houses and the &g
on it, and this tract was a unit in the national system of police [ e ^ f scat '
and finance 2 But we are not entitled to make for ourselves steads,
any one typical picture of the English vill. We are learning
from the ordnance map (that marvellous palimpsest, which
under Dr Meitzen's guidance we are beginning to decipher)
that in all probability we must keep at least two types before
our minds. On the one hand, there is what we might call the
true village or the nucleated village. In the purest form of
this type there is one and only one cluster of houses. It is a
fairly large cluster ; it stands in the midst of its fields, of its ter-
ritory, and until lately a considerable part of its territory will
probably have consisted of spacious 'common fields.' In a country
in which there are villages of this type the parish boundaries
seem almost to draw themselves 3 . On the other hand, we may
easily find a country in which there are few villages of this
character. The houses which lie within the boundary of the
parish are scattered about in small clusters; here two or
three, there three or four. These clusters often have names of
their own, and it seems a mere chance that the name borne
by one of them should be also the name of the whole parish or
vill 4 . We see no traces of very large fields. On the face of
the map there is no reason why a particular group of cottages
should be reckoned to belong to this parish rather than to the
next. As our eyes grow accustomed to the work we may
arrive at some extremely important conclusions such as those
which Meitzen has suggested. The outlines of our nucleated
villages may have been drawn for us by Germanic settlers,
whereas in the land of hamlets and scattered steads old
Celtic arrangements may never have been thoroughly effaced.
1 We do not mean to imply that there were not wide stretches of waste land
which were regarded as being ' extra- villar,' or common to several vills.
" Hist. Eng. Law, i. 547.
3 This of course would not be true of cases in which the lands of various
villages were intermixed in one large tract of common field. As to these
'discrete vills,' see Hist. Eng. Law, i. 549.
4 This name-giving cluster will usually contain the parish church and so will
eujoy a certain preeminence. But we are to speak of a time when parish
churches were novelties.
16 Domesday Book,
Towards theories of this kind we are slowly winning our way.
In the meantime let us remember that a villa of Domesday
Book may correspond to one of at least two very different
models or may be intermediate between various types. It
may be a fairly large and agrarianly organic unit, or it may
be a group of small agrarian units which are being held
together in one whole merely by an external force, by police
law and fiscal law 1 .
Two little fragments of 'the original one inch ordnance
m ap ' will be more eloquent than would be many paragraphs of
written discourse. The one pictures a district on the border
between Oxfordshire and Berkshire cut by the Thames and
the main line of the Great Western Railway ; the other a
district on the border between Devon and Somerset, north of
Collumpton and south of Wiveliscombe. Neither is an extreme
example. True villages we may easily find. Cambridgeshire,
for instance : would have afforded some beautiful specimens, for
many of the ' open fields ' were still open when the ordnance
map of that county was made. But throughout large tracts of
England, even though there has been an ' inclosure ' and there
are no longer any open fields, our map often shows a land of
villages. When it does so and the district that it portrays is a
purely agricultural district, we may generally assume without
going far wrong that the villages are ancient, for during at
least the last three centuries the predominant current in our
agrarian history has set against the formation of villages and
towards the distribution of scattered homesteads. To find the
purest specimens of a land of hamlets we ought to go to Wales
or to Cornwall or to other parts of ' the Celtic fringe ' ; very
fair examples might be found throughout the west of England.
Also we may perhaps find hamlets rather than villages wherever
there have been within the historic period large tracts of forest
land. Very often, again, the parish or township looks on our
map like a hybrid. We seem to see a village with satellitic
hamlets. Much more remains to be done before we shall be
able to construe the testimony of our fields and walls and
hedges; but at least two types of vill must be in our eyes when
we are reading Domesday Book 2 .
1 See Meitzen, Siedelung und Agrarwesen der Germanen, especially ii.
119 ff.
* Wiieii the hamlets beur names with such ancient sullixes as -ton,, -uam, -by,
r /_- C r <> w n> a /.(- It ^^T
fi< /,/
# / />// l-w f I I
Fir I </
n \ ^/ ^m*^r fiopewniu.ii
Ik^O^oS?^
r
--,. ^X.^ MoulslVl^rf /\"?
>i^$ /-
r A r
''""'
\.Bet^ueen pp. 16 17]
A LAND OF VILLAGES
On the border between Oxfordshire and Berks/tire.
^^^=f^ a
.<WL , U
^^^B^^^r^m^ -
&*
\| /.": ;,///;'///.."''*,. ^;\ \\ . ((1^^*^==%-^^^^^^*
&^ffi f &'' n !fc>'\ /\L'l><<r/uimt M
^^ > -Wf" 1 '' .y&t'yHj ^.fe-/vT%CV." f
^
A LAND OF HAMLETS
tlm border between tiumersvt and Devon.
Plan of the Survey. 17
To say that the villa of Domesday Book is in general the Size of the
vill of the thirteenth century and the civil parish of the nine-
teenth is to say that the areal extent of the villa varied widely
from case to case. More important is it for us to observe that
the number of inhabitants of the villa varied widely from case
to case. The error into which we are most likely to fall will
be that of making our vill too populous. Some vills, especially
some royal vills, are populous enough; a few contain a hundred
households; but the average township is certainly much smaller
than this 1 . Before we give any figures, it should first be
observed that Domesday Book never enables us to count heads.
It states the number of the tenants of various classes, soche-
manni, villani, bordarii, and the like, and leaves us to suppose
that each of these persons is, or may be, the head of a house-
hold. It also states how many servi there are. Whether we
ought to suppose that only the heads of servile households are
reckoned, or whether we ought to think of the servi as having
no households but as living within the lord's gates and being
enumerated, men, women and able-bodied children, by the
head this is a difficult question. Still we may reach some
results which will enable us to compare township with town-
ship. By way of fair sample we may take the Armingford
hundred of Cambridgeshire, and all persons who are above the
rank of servi we will include under the term 'the non-servile
population 2 /
ARMINGFORD HUNDRED.
Non-servile
population
Servi
Total
Abington
19
19
Bassiugbourn
35
3
38
Clapton
19
19
Croydon
29
29
-worth, -wick, -thorpe, this of course is in favour of their antiquity. On the
other hand, if they are known merely hy family names such as Styles's, Nokes's,
Johnson's or the like, this, though not conclusive evidence of, is compatible with
their modernity. Meitzen thinks that in Kent and along the southern shore the
German invaders founded but few villages. The map does not convince me that
this inference is correct.
1 When more than five-and-twenty team-lands or thereabouts are ascribed to
a single place, we shall generally find reason to believe that what is being
described is not a single vill. See above, p. 13.
2 Inq. Com. Cant. 51 fol. In a few cases our figures will involve a small
element of conjecture.
M. 2
18 Domesday Book.
Hatley
18
3
21
Litlington
37
6
43
Melbourn
62
1
63
Meldreth
44
7
51
Morden
43
11
54
Morden Alia
50
50
Shingay
18
18
Tadlow
27
4
31
Wendy
12
4
16
Whaddon
44
6
50
Total 457 45 502
Here in fourteen vills we have an average of thirty-twc
non-servile households for every vill. Now even in our own
day a parish with thirty-two houses, though small, is not
extremely small. But we should form a wrong picture of the
England of the eleventh century if we filled all parts of it with
such vills as these. We will take at random fourteen vills in
Staffordshire held by Earl Roger 1 .
Non-servile
population Servi Total
Claverlege 45 45
Nordlege 909
Alvidelege 13 13
Halas 40 2 42
Chenistelei 11 11
Otne 718
Nortberie 20 1 21
Erlide 8 2 10
Gaitone 16 16
Cressvale 808
Dodintone 303
Modreshale 505
Almentoue 808
Metford 7 1 8
Total 200 7 207
Here for fourteen vills we have an average of but fourteen
non-servile households and the servi are so few that we may
neglect them. We will next look at a page in the survey of
Somersetshire which describes certain vills that have fallen to
the lot of the bishop of Coutances 2 .
1 D. B. i. 248. We have tried to avoid vills in which it is certain or probable
that some other tenant in chief had an estate.
2 D. B. i. 88. We have tried to make sure that no tenant in chief save the
Plan of the Survey. 19
Non-servile
population
Servi
Total
"Winemeresham
8
3
11
Chetenore
3
1
4
Widicumbe
21
6
27
Harpetrev
10
2
12
Hotune
11
11
Lilebere
6
1
7
Wintreth
4
2
6
Aisecome
11
7
18
Clutone
22
1
23
Temesbare
7
3
10
Nortone
16
3
19
Cliveham
15
1
16
Ferenberge
13
6
19
Cliveware
6
6
Total
153
36
189
Here we have on the average but eleven non-servile house-
holds for each village, and even if we suppose each servus to
represent a household, we have not fourteen households. Yet
smaller vills will be found in Devonshire, many vills in which
the total number of the persons mentioned does not exceed ten
.and near half of these are servi. In Cornwall the townships,
if townships we ought to call them, are yet smaller ; often we
can attribute no more than five or six families to the vill even
if we include the servi.
Unless our calculations mislead us, the density of the Population
population in the average vill of a given county varies some- of the vUli
what directly with the density of the population in that county ;
at all events we can not say that where vills are populous, vills
will be few. As regards this matter no precise results are
attainable; our document is full of snares for arithmeticians.
Still if for a moment we have recourse to the crude method of
dividing the number of acres comprised in a modern county by
the number of the persons who are mentioned in the survey of
that county, the outcome of our calculation will be remarkable
and will point to some broad truth 1 . For Suffolk the quotient
bishop had land in any of these vills, and this we think fairly certain, except as
regards Harptree and Norton. There are now two Harptrees, East and West,
and four or more Nortons.
1 We take the figures from Ellis, Introduction, ii. 417 S.
22
20 Domesday Book.
Contrast is 46 or thereabouts ; for Norfolk but little larger 1 ; for Essex
east? and 61, for Lincoln 67 ; for Bedford, Berkshire, Northampton,
Leicester, Middlesex, Oxford, Kent and Somerset it lies between
70 and 80, for Buckingham, Warwick, Sussex, Wiltshire and
Dorset it lies between 80 and 90 ; Devon, Gloucester, Wor-
cester, Hereford are thinly peopled, Cornwall, Stafford, Shropshire
very thinly. Some particular results that we should thus attain
would be delusive. Thus we should say that men were sparse
in Cambridgeshire, did we not remember that a large part of
our modern Cambridgeshire was then a sheet of water. Per-
manent physical causes interfere with the operation of the
general rule. Thus Surrey, with its wide heaths has, as we
might expect, but few men to the square mile. Derbyshire has
many vills lying waste; Yorkshire is so much wasted that it
can give us no valuable result; and again, Yorkshire and
Cheshire were larger than they are now, while Rutland and
the adjacent counties had not their present boundaries. For
all this however, we come to a very general rule : the density
of the population decreases as we pass from east to west. With
this we may connect another rule : land is much more valuable
in the east than it is in the west. This matter is indeed hedged
in by many thorny questions ; still whatever hypothesis we may
adopt as to the mode in which land was valued, one general
truth comes out pretty plainly, namely, that, economic arrange-
ments being what they were, it was far better to have a
team-land in Essex than to have an equal area of arable
land in Devon.
Small vills. Between eastern and western England there were differences
visible to the natural eye. With these were connected unseen
and legal differences, partly as causes, partly as effects. But
for the moment let us dwell on the fact that many an English
vill has very few inhabitants. We are to speak hereafter of
village communities. Let us therefore reflect that a community
of some eight or ten householders is not likely to be a highly
organized entity. This is not all, for these eight or ten house-
1 Very possibly this figure is too low. There is reason to think that some of
the free men and sokemen of these counties get counted twice or thrice over
because they hold land under several different lords. On the other hand Ellis
(Introduction, ii. 491) would argue that the figure is too high. But the words
Alii ibi tenent which occur at the end of numerous entries mean, we believe, not
that there are in this vill other unenumerated tillers of the soil, but that the vill
is divided between several tenants in chief.
Plan of the Survey. 21
holders will often belong to two, three or four different social
and economic, if not legal, classes. Some may be sokemen,
some villani, bordarii, cotarii, and besides them there will be a
few servi. If a vill consists, as in Devonshire often enough it
will, of some three villani, some four bordarii and some two
servi, the 'township-moot,' if such a moot there be, will be a
queer little assembly, the manorial court, if such a court there
be, will not have much to do. These men can not have many
communal affairs ; there will be no great scope for dooms or for
by-laws ; they may well take all their disputes into the hundred
court, especially in Devonshire where the hundreds are small.
Thus of the visible vill of the eleventh century and its material
surroundings we may form a wrong notion. Often enough in
the west its common fields (if common fields it had) were not
wide fields; the men who had shares therein were few and
belonged to various classes. Thus of two villages in Gloucester-
shire, Brookthorpe and Harescombe, all that we can read is
that in Brostrop there were two teams, one villanus, three
bordarii, four servi, while in Hersecome there were two teams,
two bordarii and five servi 1 . Many a Devonshire township can
produce but two or three teams. Often enough our ' village
community' will be a heterogeneous little group whose main
capital consists of some 300 acres of arable land and some
20 beasts of the plough.
On the other hand, we must be careful not to omit from our Impor-
view the rich and thickly populated shires or to imagine or to the east.
speak as though we imagined that a general theory of English
history can neglect the East of England. If we leave Lincoln-
shire, Norfolk and Suffolk out of account we are to all appear-
ance leaving out of account not much less than a quarter of the
whole nation 2 . Let us make three groups of counties: (1) a
South-Western group containing Devon, Somerset, Dorset and
Wiltshire: (2) a Mid- Western group containing the shires of
Gloucester, Worcester, Hereford, Salop, Stafford and Warwick :
(3) an Eastern group containing Lincolnshire, Norfolk and
Suffolk. The first of these groups has the largest ; the third
the smallest acreage. In Domesday Book, however, the figures
which state their population seem to be these 3 :
1 D. B. i. 162 b.
2 Ellis's figures are : England 283, 242 : the three counties 72,883.
3 We take these figures from Ellis.
22 Domesday Book.
South -Western Group : 49,155
Mid- Western Group: 33,191
Eastern Group: 72,883
These figures are so emphatic that they may cause us for a
moment to doubt their value, and on details we must lay no
stress. But we have materials which enable us to check the
general effect. In 1297 Edward I. levied a lay subsidy of a
ninth 1 . The sums borne by our three groups of counties were
these :
South- Western Group : 4,038
Mid-Western Group: 3,514
Eastern Group : 7,329
There is a curious resemblance between these two sets of figures.
Then in 1377 and 1381 returns were made for a poll-tax 2 . The
number of polls returned in our three groups were these :
1377 1381
South- Western Group : 183,842 106,086
Mid- Western Group : 158,245 115,679
Eastern Group : 255,498 182,830
No doubt all inferences drawn from medieval statistics are
exceedingly precarious ; but, unless a good many figures have
conspired to deceive us, Lincolnshire, Norfolk and Suffolk were
at the time of the Conquest and for three centuries afterwards
vastly richer and more populous than any tract of equal area
in the West.
Manorial Another distinction between the eastern counties and the
and non- r TT> i j T
manorial rest ot England is apparent. In many shires we shall find that
the name of each vill is mentioned once and no more. This is
so because the land of each vill belongs in its entirety to some
one tenant in chief. We may go further : we may say, though
at present in an untechnical sense, that each vill is a manor.
Such is the general rule, though there will be exceptions to it.
On the other hand, in the eastern counties this rule will become
the exception. For example, of the fourteen vills in the
Armingford hundred of Cambridgeshire there is but one of
1 Lay Subsidy, 25 Edw. I. (Yorkshire Archaeological Society), pp. xxxi-xxxv.
Fractions of a pound are neglected.
2 Powell, The Eising in East Anglia, 120-3. The great decrease between
1377 and 1381 in the number of persons taxed, we must not try to explain.
Plan of the Survey. 23
which it is true that the whole of its land is held by a single
tenant in chief. In this county it is common to find that three
or four Norman lords hold land in the same vill. This seems true
not only of Cambridgeshire but also of Essex, Suffolk, Norfolk,
Lincoln, Nottingham, Derby, and some parts of Yorkshire.
Even in other districts of England the rule that each vill has a
single lord is by no means unbroken in the Conqueror's day
and we can see that there were many exceptions to it in the
Confessor's. A careful examination of all England vill by vill
would perhaps show that the contrast which we are noting is
neither so sharp nor so ancient as at first sight it seems to be :
nevertheless it exists.
A better known contrast there is. The eastern counties are The distri-
the home of liberty 1 . We may divide the tillers of the soil free'meu
into five great classes ; these in order of dignity and freedom and serfs ~
are (1) liberi homines, (2) sochemanni, (3) villani, (4) bordarii,
cotarii etc., (5) servi. The two first of these classes are to be
found in large numbers only in Norfolk, Suffolk, Lincolnshire,
Nottinghamshire, Leicestershire and Northamptonshire. We
shall hereafter see that Cambridgeshire also has been full of
sokemen, though since the Conquest they have fallen from their
high estate. On the other hand, the number of servi increases
pretty steadily as we cross the country from east to west. It
reaches its maximum in Cornwall and Gloucestershire ; it is
very low in Norfolk, Suffolk, Derby, Leicester, Middlesex,
Sussex ; it descends to zero in Yorkshire and Lincolnshire.
This descent to zero may fairly warn us that the terms with
which we are dealing may not bear precisely the same meaning
in all parts of England, or that a small class is apt to be reckoned
as forming part of a larger class. But still it is clear enough
that some of these terms are used with care and express real
and important distinctions.
Of this we are assured by a document which seems to The classi-
reproduce the wording of the instructions which defined the msn. "
duty of at least one party of royal commissioners 2 . We are
about to speak of the mode in which the occupants of the soil
are classified by Domesday Book, and therefore this document
1 See the serviceable maps in Seebohm, Village Community, 86. But they
seem to treat Yorkshire unfairly. It has 5-5 per cent, of sokemen.
2 This is found at the beginning of the Inquisitio Eliensis ; D. B. iv. 4<J7 ;
Hamilton, Inquisitio, 97. See Bound, Feudal England, 133 ff.
24 Domesday Book.
deserves our best attention. It runs thus : The King's barons
inquired by the oath of the sheriff of the shire and of all the
Karons and of their Frenchmen and of the whole hundred, the
priest, reeve and six villani of every vill, how the mansion
(mansio) is called, who held it in the time of King Edward,
who holds it now, how many hides, how many plough-teams on
the demesne, how many plough-teams of the men, how many
villani, how many cotarii, how many servi, how many liberi
homines, how many sochemanni, how much wood, how much
meadow, how much pasture, how many mills, how many
fisheries, how much has been taken away therefrom, how much
added thereto, and how much there is now, how much each
liber homo and sochemannus had and has : All this thrice over,
to wit as regards the time of King Edward, the time when
King William gave it, and the present time, and whether more
can be had thence than is had now 1 .
Basis of Five classes of men are mentioned and they are mentioned
tion 8 ' in an order that is extremely curious : villani, cotarii, servi,
liberi homines, sochemanni. It descends three steps, then it
leaps from the very bottom of the scale to the very top and
thence it descends one step. A parody of it might speak of the
rural population of modern England as consisting of large
farmers, small farmers, cottagers, great landlords, small landlords.
But a little consideration will convince us that beneath this
apparent caprice there lies some legal principle. We shall
observe that these five species of tenants are grouped into two
genera. The king wants to know how much each liber homo,
how much each sochemannus holds ; he does not want to know
how much each villanus, each cotariits, each servus holds.
Connecting this with the main object of the whole survey, we
shall probably be brought to the guess that between the soke-
man and the villein there is some broad distinction which
concerns the king as the recipient of geld. May it not be
this : the villein's lord is answerable for the geld due from the
land that the villein holds, the sokeman's lord is not answerable,
1 We must not hastily draw the inference that every party of com-
missioners received the same set of instructions. Perhaps, for example,
carucates, not hides, were mentioned in the instructions given to those
commissioners who were to visit the carucated counties. Perhaps the non-
appearance of servi in Yorkshire and Lincolnshire may be due to no deeper
cause.
Plan of the Survey. 25
at least he is not answerable as principal debtor for the geld
due from the land that the sokeman holds ? If this be so, the
order in which the five classes of men are mentioned will not
seem unnatural. It proceeds outwards from the lord and his
mansio. First it mentions the persons seated on land for the
geld of which he is responsible, and them it arranges in an
' order of merit.' Then it turns to persons who, though in some
way or another connected with the lord and his mansio, are
themselves tax-payers, and concerning them the commissioners
are to inquire how much each of them holds. Of course we
can not say that this theory is proved by the statement that lies
before us ; but it is suggested by that statement and may for
a while serve us as a working hypothesis. If this theory be
sound, then we have here a distinction of the utmost importance.
For one mighty purpose, the purpose that is uppermost in King
William's mind, the villanus is not a landowner, his lord is the
landowner ; on the other hand the sochemannus is a landowner,
and is taxed as such. We are not saying that this is a purely
fiscal distinction. In legal logic the lord's liability for the geld
that is apportioned on the land occupied by his villeins may be
rather an effect than a cause. A lawyer might argue that the
lord must pay because the occupier is his villanus, not that the
occupier is a villanus because the lord pays. And yet, as we
may often see in legal history, there will be action and reaction
between cause and effect. The geld is no trifle. Levied at
that rate of six shillings on the hide at which King William
has just now levied it, it is a momentous force capable of
depressing and displacing whole classes of men. In 1086 this
tax is so much in everybody's mind that any distinction as to
its incidence will cut deeply into the body of the law.
Now this classification of men we will take as the starting Our course,
point for our enterprise. If we could define the liber homo,
sochemannus, villanus, cotarius, servus, we should have solved
some of the great legal problems of Domesday Book, for by the
way we should have had to define two other difficult terms,
namely manerium and soca. It would then remain that we
should say something of the higher strata of society, of earls
and sheriffs, of barons, knights, thegns and their tenures, of
such terms as alodium and feudum, of the general theory of
landownership or landholdership. We will begin with the
lowest order of men, with the servi, and thence work our way
26 Domesday Book.
upwards. But our course can not be straightforward. There
are so many terms to be explained that sometimes we shall be
compelled to leave a question but partially answered while we
are endeavouring to find a partial answer for some yet more
difficult question.
2. The Serfs.
The serfs The existence of some 25,000 serfs is recorded. In the
in Domes- . , ...
day Book, thirteenth century servus and villamts are, at least among
lawyers, equivalent words. The only unfree man is the ' serf-
villein ' and the lawyers are trying to subject him to the curious
principle that he is the lord's chattel but a free man in relation
to all but his lord 1 . It is far otherwise in Domesday Book. In
entry after entry and county after county the servi are kept
well apart from the villa ni, bordarii, cotarii. Often they are
mentioned in quite another context to that in which the villani
are enumerated. As an instance we may take a manor in
Surrey 2 : 'In demesne there are 5 teams and there are 25
villani and 6 bordarii with 14 teams. There is one mill of
2 shillings and one fishery and one church and 4 acres of
meadow, and wood for 150 pannage pigs, and 2 stone-quarries
of 2 shillings and 2 nests of hawks in the wood and 10 servi.'
Often enough the servi are placed between two other sources of
wealth, the church and the mill. In some counties they seem
to take precedence over the villani ; the common formula is ' In
dominio sunt a carucae et b servi et c villani et d bordarii cum
e carucis.' But this is delusive; the formula is bringing the
servi into connexion with the demesne teams and separating
them from the teams of the tenants. We must render it thus
' On the demesne there are a teams and b servi ; and there are
c villani and d bordarii with e teams.' Still we seem to see a
gently graduated scale of social classes, villani, bordarii, cotarii,
servi, and while the jurors of one county will arrange them in
one fashion, the jurors of another county may adopt a different
scheme. Thus in their classification of mankind the jurors will
sometimes lay great stress on the possession of plough oxen.
In Hertfordshire we read : ' There are 6 teams in demesne and
1 Hist. Eng. Law, i. 398. 2 D. B. i. 34, Limenesfeld.
The Serfs. 27
41 villani and 17 bordarii have 20 teams... there are 22 cotarii
and 12 servi 1 .' 'The priest, 13 villani and 4 bordarii have
6 teams... there are two cotarii and 4 servi' 2 .' 'The priest and
24 villani have 13 teams... there are 12 bordarii, 16 cotarii and
11 servi 3 .' A division is in this instance made between the
people who have oxen and the people who have none ; villani
have oxen, cotarii and servi have none ; sometimes the bordarii
stand above this line, sometimes below it.
Of the legal position of the servus Domesday Book tells us Legal posi-
little or nothing ; but earlier and later documents oblige us to ^f of the
think of him as a slave, one who in the main has no legal
rights. He is the theow of the Anglo-Saxon dooms, the servus
of the ecclesiastical canons. But though we do right in calling
him a slave, still we might well be mistaken were we to think
of the line which divides him from other men as being as sharp
as the line which a mature jurisprudence will draw between thing
and person. We may well doubt whether this principle ' The
slave is a thing, not a person' can be fully understood by a
grossly barbarous age. It implies the idea of a person, and in
the world of sense we find not persons but men.
Thus degrees of servility are possible. A class may stand, Degrees of
as it were, half-way between the class of slaves and the class se
of free men. The Kentish law of the seventh century as it
appears in the dooms of ^Ethelbert 4 , like many of its conti-
nental sisters, knows a class of men who perhaps are not free
men and yet are not slaves ; it knows the Icet as well as the
theow. From what race the Kentish ket has sprung, and how,
when it comes to details, the law will treat him these are
obscure questions, and the latter of them can not be answered
unless we apply to him what is written about the laeti, liti and
lidi of the continent. He is thus far a person that he has a
small wergild but possibly he is bound to the soil. Only in
JEthelbert's dooms do we read of him. From later days, until
Domesday Book breaks the silence, we do not obtain any
definite evidence of the existence of any class of men who
are not slaves but none the less are tied to the land. Of men
who are bound to do heavy labour services for their lords we do
hear, but we do not hear that if they run away they can be
1 D. B. i. 132 b, Hiz. * D. B. i. 132 b, Waldenei.
3 D. B. i. 136, Sandone. 4 ^thelb. 26.
28 Domesday Book.
captured and brought back. As we shall see by and by,
Domesday Book bears witness to the existence of a class of
buri, burs, coliberti, who seem to be distinctly superior to the
servi, but distinctly inferior to the villeins, bordiers and cottiers.
It is by no means impossible that they, without being slaves,
are in a very proper and intelligible sense unfree men, that they
have civil rights which they can assert in courts of law, but that
they are tied to the soil. The gulf between the seventh and the
eleventh centuries is too wide to allow of our connecting them
with the Icet of ^Ethelbert's laws, but still our documents are
not exhaustive enough to justify us in denying that all along
there has been a class (though it can hardly have been a large
class) of men who could not quit their tenements and yet were
no slaves. As we shall see hereafter, liberty was in certain
contexts reckoned a matter of degree ; even the villanus, even
the sochemannus was not for every purpose liber homo. When
this is so, the thedw or serviis is like to appear as the unfreest of
persons rather than as no person but a thing.
In the second place, we may guess that from a remote time
there has been in the condition of the thedw a certain element
of praediality. The slaves have not been worked in gangs nor
housed in barracks 1 . The servus has often been a servus casatus,
he has had a cottage or even a manse and yardland which de
facto he might call his own. There is here no legal limitation of
his master's power. Some slave trade there has been ; but on the
whole it seems probable that the thedw has been usually treated
as annexed to a tenement. The duties exacted of him from
year to year have remained constant. The consequence is that
a free man in return for a plot of land may well agree to do all
that a theow usually does and see in this no descent into slavery.
Thus the slave gets a chance of acquiring what will be as a
matter of fact a peculium. In the seventh century the church
tried to turn this matter of fact into matter of law. ' Non licet
homini,' says Theodore's Penitential, ' a servo tollere pecuniam,
quam ipse labore suo adquesieritV We have no reason for
thinking that this effort was very strenuous or very successful,
1 Tacitus, Germ. c. 25 : ' Caeteris servis non in nostrum morem, descriptis
per familiam ministeriis, utuntur. Suam quisque sedem, suos penates regit.
Frumenti modum dominus aut pecoris aut vestis ut colouo iniungit, et servus
hactenus paret.'
2 Haddan and Stubbs, Councils, iii. 202.
The Serfs. 29
or that the law of the eleventh century allowed the servus any
proprietary rights ; and yet he might often be the occupier of
land and of chattels with which, so long as he did his customary
services, his lord would seldom meddle.
In the third place, we may believe that for some time past The serf in
police law and punitive law have been doing something to ia w .
conceal, if not to obliterate, the line which separates the slave
from other men. A mature jurisprudence may be able to hold
fast the fundamental principle that a slave is not a person but
a thing, while at the same time it both limits the master's
power of abusing his human chattel and guards against those
dangers which may arise from the existence of things which have
wills, and sometimes bad wills, of their own. But an immature
jurisprudence is incapable of this exploit. It begins to play fast
and loose with its elementary notions. It begins to punish the
criminous slave without being quite certain as to how far it is
punishing him and how far it is punishing his master. Confusion
is easy, for if the slave be punished by death or mutilation, his
master will suffer, and a pecuniary mulct exacted from the slave
is exacted from his "master. Learned writers have come to the
most opposite opinions as to the extent to which the Anglo-
Saxon dooms by their distribution of penalties recognize the
personality of the theow. But this is not all. For a long time
past the law has had before it the difficult problem of dealing
with crimes and delicts committed by poor and economically
dependent free men, men who have no land of their own, who are
here to-day and gone to-morrow, ' men from whom no right can
be had.' It has been endeavouring to make the lords answerable
to a certain extent for the misdeeds of their free retainers. If
a slave is charged with a crime his master is bound to produce
him in court. But the law requires that the lord shall in very
similar fashion produce his free ' loaf eater,' his mainpast, nay,
it has been endeavouring to enforce the rule that every free man
who has no land of his own shall have a lord bound to produce
him when he is accused. Also it has been fostering the growth
of private justice. The lord's duty of producing his men, bond
and free, has been becoming the duty of holding a court in
which his men, free and bond, will answer for themselves.
How far this process bad gone in the days of the Confessor
is a question to which we shall return 1 .
1 See on the one hand Maurer, K. U. i. 410, on the other a learned essay
30 Domesday Book.
Serf and For all this however, we may say with certainty that in the
eleventh century the servi were marked off from all other men
by definite legal lines. What is more, we may say that every
man who was not a theow was in some definite legal sense a
free man. This sharp contrast is put before us by the laws of
Cnut as well as by those of his predecessors. If a freeman
works on a holiday, he pays for it with his healsfang; if a
theowman does the like, he pays for it with his hide or his
hide-geld 1 . Equally sharp is the same distinction in the Leges
Henrici, and this too in passages which, so far as we know, are
not borrowed from Anglo-Saxon documents. For many purposes
' aut servus aut liber homo ' is a perfect dilemma. There is no
confusion whatever between the villani and the servi. The
villani are ' viles et inopes personae ' but clearly enough they
are liberi homines. So also in the Quadripartitus, the Latin
translation of the ancient dooms made in Henry I.'s reign, there
is no confusion about this matter; the thedwman becomes a
servus, while villanus is the equivalent for ceorl. The Norman
writers still tell how according to the old law of the English
the villanus might become a thegn if he acquired five hides of
land 2 ; at times they will put before us villani and thaini or
even villani and barones as an exhaustive classification of free
men 3 .
The serf of Let us learn what may be learnt of the servus from the
tllG LcfiCS.
Leges Henrici. Every man is either a liber homo or a servus*.
Free men are either two-hundred-men or twelve-hundred-men ;
by Jastrow, Zur strafrechtlichen Stellung der Sklaven, in Gierke's Unter-
suchungen zur Deutsche Geschichte, vol. i. Maurer holds that the Anglo-
Saxon slave is in the main a chattel, that e.g. the master must answer for the
delicts of his slave in the same way that the owner answers for damage done by
his beasts, and that this liability can be clearly marked off from the duty of the
lord of free retainers who is merely bound to produce them in court. Jastrow,
on the contrary, thinks that even at a quite early time the Anglo-Saxon slave is
treated as a person by criminal law ; he has a wergild ; he can be fined ; his
tiespasses are never compared to the trespasses of beasts ; the lord's duty, if
one of his men is charged with crime, is much the same whether that man be
free or bond. Any theory involves an explanation of several passages that are
obscure and perhaps corrupt.
1 Cuut, ii. 45-6.
* Schmid, Appendix v. (Of Ranks, ; Pgeudoleges Canuti, 60 (Schmid,
p. 431).
3 Leg. Hen. 70 7 : ' Differentia tanien weregildi multa est in Cantia villan-
orum et baronum.'
> Leg. Hen. 7G 2.
The Serfs. 31
perhaps we ought to add that there is also a class of six-
hundred-men 1 . A serf becomes such either by birth or by
some event, such as a sale into slavery, that happens in his
lifetime 2 . Servile blood is transmitted from father to child ;
some lords hold that it is also transmitted by mother to child 3 .
If a slave is to be freed this should be done publicly, in court,
or church or market, and lance and helmet or other the arms of
free men should be given him, while he should give his lord
thirty pence, that is the price of his skin, as a sign that he is
henceforth ' worthy of his hide.' On the other hand, when a
free man falls into slavery then also there should be a public
ceremony. He should put his head between his lord's hands
and should receive as the arms of slavery some bill-hook or
the like 4 . Public ceremonies are requisite, for the state is
endangered by the uncertain condition of accused criminals; the
lords will assert at one moment that their men are free and at
the next moment that these same men are slaves 5 . The descent
of a free man into slavery is treated as no uncommon event ;
the slave may well have free kinsfolk 6 . But, to come to the
fundamental rule, the villanus, the meanest of free men, is a
two-hundred-man, that is to say, if he be slain the very
substantial wergild of 200 Saxon shillings or 4 must be paid
to his kinsfolk 7 , while a man-b<5t of 30 shillings is paid to his
lord 8 . But if a servus be slain his kinsfolk receive the com-
paratively trifling sum of 40 pence while the lord gets the
man-b(5t of 20 shillings 9 . That the serf's kinsfolk should
receive a small sum need not surprise us. Germanic law has
1 Leg. Hen. 76 3. 2 Ibid. 76 3.
3 Ibid. 77 ; see Hist. Eng. Law, i. 405.
4 Ibid. 78 2. The difficult strublum we leave untouched.
5 Ibid. 78 2 from Cnut, n. 20. On this see Jastrow's comment, op. cit.
p. 80.
6 Ibid. 70 5. 7 Ibid. 70 1 ; 76 4. 8 Ibid. 69 2.
9 Ibid. 70 4 : 'Si liber servum occidat similiter reddat parentibus 40 den. et
duas mufflas et unum pullum [al. billum] mutilatum.' The mufflae are thick
gloves. Compare Ancient Laws of Wales, i. 239, 511 ; the bondman has no
galanas (wergild) but if injured he receives a saraad ; 'the saraad of a bondman
is twelve pence, six for a coat for him, three for trousers, one for buskins, one
for a hook and one for a rope, and if he be a woodman let the hook-penny be for
an axe.' If we read billum instead of pullum the English rule may remind us
of the Welsh. His hedger's gloves and bill-hook are the arms appropriate to
the serf, ' servitutis arma ' ; cf. Leg. Hen. 78 2. As to the man-hot see Lieber-
mann, Leg. Edwardi, p. 71.
32 Domesday Book.
never found it easy to carry the principle that the slave is a
chattel to extreme conclusions ; but the payment seems trifling
and half contemptuous ; at any rate the life of the villein is
worth the life of twenty-four serfs 1 . Then again, it is by no
means certain that a lord can not kill his serf with impunity.
' If,' says our text, ' a man slay his own serf, his is the sin and
his is the loss ' : we may interpret this to mean that he has
sinned but sinned against himself 2 . Then again, for the evil
deeds of his slave the master is in some degree responsible.
If my slave be guilty of a petty theft not worthy of death, I
am bound to make restitution ; if the crime be a capital one
and he be taken handhaving, then he must ' die like a free
man 3 .' If my slave be guilty of homicide, my duty is to set
him free and hand him over to the kindred of the slain, but
apparently I may purchase his life by a sum of 40 shillings, a
sum much less than the wer of the slain man 4 . We must not
be too hard on the owners of delinquent slaves. There are
cases, for example, in which, several slaves having committed
a crime, one of them chosen by lot must suffer for the sins of
all 5 . Our author is borrowing from the laws of several different
centuries and does not arrive at any neat result ; nor must we
wonder at this, for the problems presented to jurisprudence by
the crimes and delicts of slaves are very intricate. Then again,
we have the rule that if free men and serfs join in a crime, the
whole guilt is to be attributed to the free: he who joins
with a slave in a theft has no companion 6 . On the whole,
though the slave is likely to have as a matter of fact a
peculium of his own, a peculium out of which he may be able
to pay for his offences and even perhaps to purchase his
liberty 7 , the servus of our Leges seems to be in the main a
rightless being. We look in vain for any trace of that idea of
the relativity of servitude which becomes the core of Bracton's
1 In Leg. Hen. 81 3 (a passage which seems to show that by his master's
favour even the servus may sometimes sue for a wrong done to him) we have
this sum : villanus : cothsetus : servus :: 30 : 15 : 6.
2 Ibid. 75 4: suum peccatum est et dampnum.' See also 70 10, an
exceedingly obscure passage.
3 Ibid. 59 23.
4 Ibid. 70 5 ; but for this our author has to go back as far as Inc.
8 Ibid. 59 25.
6 Ibid. 59 24 ; 85 4 : ' solus furatur qui cum servo furatur. '
7 Ibid. 78 3 ; 59 25.
The Serfs. 33
doctrine 1 . At the same time we observe that many, perhaps
most, of the rules which mark the slavish condition of the
serf are ancient rules and rules that are becoming obsolete.
In the twelfth century the old system of wer and bot is
already vanishing, though an antiquarian lawyer may yet
try to revivify it. When it disappears altogether before the
new law, which holds every grave crime to be a felony, and
punishes almost every felony with death 2 , many grand differ-
ences between the villein and the serf will have perished. The
gallows is a great leveller.
If now we recur to the days of the Conquest, we cannot doubt Return to
that the law knew a definite class of slaves, and marked them | he
off by many distinctions from the villani and cotarii, and even (
from the coliberti. Sums that seem high were being paid for
men whose freedom was being purchased 3 . At Lewes the toll
paid for the sale of an ox was a halfpenny ; on the sale of a
man it was fourpence 4 . In later documents we may sometimes
see a distinction well drawn. Thus in the Black Book of
Peterborough, compiled in 1127 or thereabouts, we may read
how on one of his manors the abbot has eight herdsmen
(bovarii), how each of them holds ten acres, has to do labour
services and render loaves and poultry. And then we read that
each of them must pay one penny for his head if he be a free
man (liber homo), while he pays nothing if he be a servus 5 .
This is a well-drawn distinction. Of two men whose economic
position is precisely the same, the one may be free, the other a
slave, and it is the free man, not the slave, who has to pay a
head-penny. Now when the Conqueror's surveyors, or rather
the jurors, call a man a servus they are, so it seems to us,
thinking rather of his legal status than of his position in the
economy of a manor. At any rate we ought to observe that the
economic stratification of society may cut the legal stratification.
We are accustomed perhaps to suppose that while the villani
have lands that are in some sense their own, while they support
themselves and their families by tilling those lands, the servus
has no land that is in any sense his own, but is fed at his lord's
board, is housed in his lord's court, and spends all his time in
1 Hist. Eng. Law, i. 398, 402. a jjist. Eng. Law, ii. 457.
3 See the Bath manumissions, Kemble, Saxons, i. 507 ff. Sometimes a
pound or a half-pound is paid.
4 !> B. i. 26. s Chron. Petrob. 163.
M. 3
34 Domesday Book.
the cultivation of his lord's demesne lands. Such may have
been the case in those parts of England where we hear of but
few servi ; those few may have been inmates of the lord's house
and have had no plots of their own. But such can hardly have
been the case in the south-western counties ; the servi are too
many to be menials. Indeed it would seem that these servi
sometimes had arable plots, and had oxen, which were to be
distinguished from the demesne oxen of their lords not indeed
as a matter of law, but as a matter of economic usage 1 . It is
plain that the legal and the economic lines may intersect one
another; the menial who is fed by the lord and who must give
his whole time to the lord's work may be a free man ; the slave
may have a cottage and oxen and a plot of arable land, and
labour for himself as well labouring for his lord. Hence a
perplexed and uncertain terminology : the servus who has land
and oxen may be casually called a villanus 2 , and we cannot be
sure that no one whom our record calls a servus has the wer-
gild of a free man. Nor can we be sure that the enumeration
of the servi is always governed by one consistent principle. In
the shires of Gloucester, Hereford and Worcester we read of
numerous ancillae in Worcestershire of 677 servi and 101
ancillae 3 and this may make us think that in this district all
the able-bodied serfs are enumerated, whether or no they have
cottages to themselves 4 . We may strongly suspect that the
king's commissioners were not much interested in the line that
separated the villani from the servi, since the lord was as directly
answerable for the geld of any lands that were in the occu-
pation of his villeins as he was for the geld of those plots that
were tilled for him by his slaves. That there should have been
1 D. B. i. 105 b, Devon : ' Bolf tenet de B[alduino] Boslie... Terra est 8 carucis.
In dominio est 1 caruca et dimidia et 7 servi cum 1 caruca.' D. B. iv. 265 :
'Balduinus habet 1 mansionem quae vocatur Bosleia...hanc possunt arare 8
carrucae et modo tenet earn Boffus de Balduiuo. Inde habet B. 1 ierdinum et
1 carrucam et dimidiam in dominio et villani teuent aliam terrain et habent ibi
1 carrucam. Ibi habet B. 7 servos.' In the Exeter record these seven serfs seem
to get reckoned as being both servi and villani. So in the account of Bentis,
D. B. iv. 204-5, the lord is said to have one quarter of the arable in demesne
and two oxen, while the villani are said to have the rest of the arable and one
team ; but the only villani are 8 coliberti and 4 servi.
- See last note. 3 Ellis, Introduction, ii. 504-6.
4 See, for example, the following Herefordshire entry, D. B. i. 180 b : ' Iu
dominio sunt 2 carucae et 4 villain et 8 bordarii et prepositus et bedellus. Inter
omnes habent 4 carucas. Ibi 8 inter servos et ancillas et vaccarius et daia.'
The Serfs. 35
never a ihetiw in all Yorkshire and Lincolnshire is hardly credible,
and yet we hear of no servi in those counties.
This being so, we encounter some difficulty if we would put Disappear-
just the right interpretation on a remarkable fact that is visible
in Essex. The description of that county tells us not only how
many villani, bordarii and servi there are now, but also how
many there were in King Edward's day, and thus shows what
changes have taken place during the last twenty years. Now
on manor after manor the number of villeins and bordiers, if of
them we make one class, has increased, while the number of
servi has fallen. We take 100 entries (four batches of 25
apiece) and see that the number of villani and bordarii has
risen from 1486 to 1894, while the number of servi has fallen
from 423 to 303. We make another experiment with a hundred
entries. This gives the following result :
1066 1086
Villani 1273 1247
Bordarii 810 1241
Servi 384 312
This decrease in the number of servi seems to be pretty evenly
distributed throughout the county 1 . We shall not readily
ascribe the change to any mildheartedness of the lords. They
are Frenchmen, and in all probability they have got the most
they could out of a mass of peasantry made malleable and
manageable by the Conquest. We may rather be entitled to
infer that there has been a considerable change in rural
economy. For the cultivation of his demesne land the lord
begins to rely less and less on the labour of serfs whom he feeds,
more and more upon the labour of tenants who have plots of
their own and who feed themselves. From this again we may
perhaps infer that the labour services of the villani and bordarii
are being augmented. But at any rate it speaks ill of their
fate, that under the sway of foreigners, who may fairly be sus-
pected of some harshness and greed, their inferiors, the true
1 Mr Eound has drawn attention to the great increase of bordarii : Antiquary
(1882) vi. 9. In the second of our two experiments the cases were taken from the
royal demesne and the lands of the churches. The surveys of Norfolk and
Suffolk profess to enumerate the various classes of peasants T. E. E. ; but
commonly each entry reports that there has been no change. Without saying
that we disbelieve these reports, we nevertheless may say that a verdict which
asserts that things have always (semper) been as they now are may easily be the
outcome of nescience.
32
36 Domesday Book.
servi, are somewhat rapidly disappearing. However, it is by no
means impossible that with a slavery so complete as that of the
English theow the Normans were not very familiar in their own
country 1 .
3. The Villeins.
The boors Next above the servi we see the small but interesting class
berts. f buri, biirs or coliberti. Probably it was not mentioned in the
writ which set the commissioners their task, and this may well
be the reason why it appears as but a very small class. It has
some 900 members; still it is represented in fourteen shires:
Hampshire, Berkshire, Wiltshire, Dorset, Somerset, Devon,
Cornwall, Buckingham, Oxford, Gloucester, Worcester, Hereford,
Warwick, Shropshire in short, in the shires of Wessex and
western Mercia. Twice over our record explains a piece of
rare good fortune that buri and coliberti are all one 2 . In
general they are presented to us as being akin rather to the
servi than to the villani or bordarii, as when we are told, ' In
demesne there is one virgate of land and there are 3 teams and
11 servi and 5 coliberti, and there are 15 villani and 15 bordarii
with 8 teams V But this rule is by no means unbroken ; some-
times the coliberti are separated from the servi and a precedence
over the cotarii or even over the bordarii is given them. Thus
of a Wiltshire manor it is written, ' In demesne there are 8
teams and 20 servi and 41 villani and 30 bordarii and 7 coliberti
and 74 cotarii have among them all 27 teams 4 .' Again of a
Warwickshire manor, ' There is land for 26 teams ; in demesne
are 3 teams and 4 servi and 43 villani and 6 coliberti and 10
bordarii with 16 teams 5 .' A classification which turns upon
legal status is cut by a classification which turns upon economic
condition. The colibertus we take to be an unfreer man (how
there come to be degrees of freedom is a question to be asked
by and by) than the cotarius or the bordarius, but on a given
manor he may be a more important person, ibr he may have
1 Hist. Eng. Law, i. 53-4.
2 D. B. i. 38, Coseharn : ' 8 burs i. coliberti.' Ib. 38 b Dene : ' et coliberti
[vel bures interlined].'
3 D. B. i. 65, Wintreburne. 4 D. B. i. 75, Bridetcme et Bere.
5 D. B. i. 239 b, Etone.
The Villeins. 37
plough beasts while the cotarius has none, he may have two
oxen while the bordarius has but an ox.
In calling him a colibertus the Norman clerks are giving him The Conti-
a foreign name, the etymological origin of which is very dark 1 ; fort*
but this much seems plain, that in the France of the eleventh
century a large class bearing this name had been formed out
of ancient elements, Roman coloni and Germanic liti, a class
which was not rightless (for it could be distinguished from the
class of servi, and a colibertus might be made a servus by way of
punishment for his crimes) but which yet was unfree, for the
colibertus who left his lord might be pursued and recaptured 2 .
As to the Englishman upon whom this name is bestowed we
know him to be a gebur, a boor, and we learn something of him
from that mysterious document entitled ' Rectitudines Singu-
larum Personarum 3 .' His services, we are told, vary from The En-
place to place ; in some districts he works for his lord two 8 1S
days a week and during harvest-time three days a week; he
pays gafol in money, barley, sheep and poultry; also he has
ploughing to do besides his week-work; he pays hearth-
penny ; he and one of his fellows must between them feed a
dog. It is usual to provide him with an outfit of two oxen, one
cow, six sheep, and seed for seven acres of his yardland, and also
to provide him with household stuff; on his death all these
chattels go back to his lord. Thus the boor is put before us
as a tenant with a house and a yardland or virgate, and two
plough oxen. He will therefore play a more important part in
the manorial economy than the cottager who has no beasts.
But he is a very dependent person ; his beasts, even the poor
furniture of his house, his pots and crocks, are provided for him
by his lord. Probably it is this that marks him off from the
ordinary villanus or ' townsman,' and brings him near the serf.
In a sense he may be a free man. We have seen how the law,
whether we look for it to the code of Cnut or to the Leges
Henrici, is holding fast the proposition that every one who
1 Guerard, Cartulaire de L'Abbaye de S. Pere de Chartres, vol. i. p. xlii.
2 The position of the colibcrti is discussed by Guerard, loc. cit., and by
Lamprecht, Geschichte des Franzosischen Wirthschaftslebens (in Schmoller's
Forschungen, Bd i.), p. 81. Guerard says, ' Les coliberts peuvent se placer a peu
pies indifferemment ou au dernier des homines libres, ou a la tete des homines
engages dans les liens de la servitude.'
3 Schmid, App. in. c. 4.
38 Domesday Book.
is not a theowman is a free man, that every one is either a
liber homo or a servus. We have no warrant for denying to
the boor the full wergild of 200 shillings. He pays the hearth-
penny, or Peter's penny, and the document that tells us this
elsewhere mentions this payment as the mark of a free man 1 .
And yet in a very true and accurate sense he may be unfree,
unfree to quit his lord's service. All that he has belongs to his
lord; he must be perpetually in debt to his lord; he could
hardly leave his lord without being guilty of something very
like theft, an abstraction of chattels committed to his charge.
Very probably if he flies, his lord has a right to recapture him.
On the other hand, so dependent a man will be in a very strict
sense a tenant at will. When he dies not only his tenement
but his stock will belong to the lord ; like the French colibert
he is mainmortable. At the same time, to one familiar with the
cartularies of the thirteenth century the rents and services
that this boor has to pay and perform for his virgate will not
appear enormous. If we mistake not, many a villanus of
Henry III.'s day would have thought them light. Of course
any such comparison is beset by difficulties, for at present
we know all too little of the history of wages and prices.
Nevertheless the intermediation of this class of buri or coliberti
between the serfs and the villeins of Domesday Book must
tend to raise our estimate both of the legal freedom and of the
economic welfare of that great mass of peasants which is now to
come before us 2 .
villani, That great mass consists of some 108,500 villani, some
cotarii. ' 82,600 bordarii, and some 6,800 cotarii and coscets 3 . Though
in manor after manor we may find representatives of each of
these three classes, we can see that for some important purpose
they form but one grand class, and that the term villanus may
be used to cover the whole genus as well as to designate one of
1 Rectitudines, c. 3.
2 Occasionally the coliberti of D. B. are put before us as paying rents in
money or in kind. Thus D. B. i. 38, Hants : ' In Coseham sunt 4 hidae quae
pertinent huic manerio ubi T. B. E. erant 8 burs i. coliberti cum 4 carucis
reddentes 50 sol. 8 den. minus.' D. B. i. 179 b, Heref. : ' Villani dant de
consuetudine 13 sol. et 4 den. et [sex] coliberti reddunt 3 sextarios frumeuti et
ordei et 2 oves et dimidiam cum agnis et 2 den. et unum obolum.' D. B. i. 165 :
'et in Glouucestre 1 burgensis reddens 5 den. et 2 coliberti reddentes 34 den.' In
a charter coming from Bishop Denewulf (K. 1079) we read of three wite-theow-
men who were boor-born and three who were theow-born.
3 Ellis, Introduction, ii. 511-14.
The Villeins. 39
its three species. In the Exon Domesday a common formula,
having stated the number of hides in the manor and the number
of teams for which it can find work, proceeds to divide the land
and the existing teams between the demesne and the villani
the villani, it will say, have so many hides and so many teams.
Then it will state how many villani, bordarii, cotarii there are.
But it will sometimes fall out that there are no villani if that
term is to be used in its specific sense, and so, after having been
told that the villani have so much land and so many teams, we
learn that the only villani on this manor are bordarii 1 . The
lines which divide the three species are, we may be sure, much
rather economic than legal lines. Of course the law may
recognise them upon occasion 2 , but we can not say that the
bordarius has a different status from that of the villanus. In
the Leges both fall under the term villani ; indeed, as hereafter
will be seen, that term has sometimes to cover all men who are
not servi but are not noble. Nor must we suppose that the
economic lines are drawn with much precision or according to
any one uniform pattern. Of villani and bordarii we may read
in every county ; cotarii or coscets in considerable numbers are
found only in Kent, Sussex, Surrey, Middlesex, Wiltshire, Dorset,
Somerset, Berkshire, Hertford and Cambridge, though they are
not absolutely unknown in Buckingham, in Devon, in Hereford,
Worcester, Shropshire, Yorkshire. We can not tell how the
English jurors would have expressed the distinction between
bordarii and cotarii, for while the cot is English, the borde is
French. If we are entitled to draw any inference from the
distribution of the cottiers, it would be that the smallest of
small tenements were to be found chiefly along the southern
shore ; but then there are no cotarii in Hampshire, plenty in
Sussex, Surrey, Wiltshire and Dorset. Again, in the two shires
last mentioned some distinction seems to be taken between the
coscets and the cotarii, the former being superior to the latter 3 .
Two centuries later we find a similar distinction among the
tenants of Worcester Priory. There are cotmanni whose rents
1 For examples see D. B. iv. 211 and the following pages.
2 Leg. Hen. 81, 3: ' Quidam villani qui sunt eiusmodi leierwitam et
blodwitam et huiusmodi minora forisfacta emerunt a dominis suis, vel quomodo
merueruut de suis et in suos, quorum fietgefoth vel overseunessa est 30 den. ;
cothseti 15 den. ; servi 6 den.'
3 D. B. i. 71, Haseberie : ' 5 villani et 13 coscez et 2 cotarii.' Ibid. 80 b ;
Chinestauestone : ' 18 villaui et 14 coscez et 4 cotarii.'
40 Domesday Book.
and services are heavier, and whose tenements are presumably
larger than those of the cotarii, though the difference is not
very great 1 .
Size of the The vagueness of distinctions such as these is well illustrated
tenement, by the failure of the term bordarius (and none is more prominent
in Domesday Book) to take firm root in this country 2 . The suc-
cessors of the bordarii seem to become in the later documents
either villani with small or cottiers with large tenements.
Distinctions which turn on the amount of land that is possessed
or the amount of service that is done cannot be accurately
formulated and forced upon a whole country. Perhaps in
general we may endow the villanus of Domesday Book with a
virgate or quarter of a hide, while we ascribe to the bordarius
a less quantity and doubt whether the cotarius usually had
arable land. But the survey of Middlesex, which is the main
authority touching this matter, shows that the villanus may on
occasion have a whole hide 3 , that is four virgates, and that often
he has but half a virgate; it shows us that the bordarius,
though often he has but four or five acres, may have a half
virgate, that is as much as many a villanus* ; it shows us that
the cotarius may have five acres, that is as much as many a
bordarius 5 , though he will often have no more than a croft 6 .
In Essex we hear of bordarii who held no arable land 7 . Nor
dare we lay down any stern rule about the possession of plough
beasts. It would seem as if sometimes the bordarius had oxen,
while sometimes he had none 8 . The villanus might have two
1 Worcester Eegister, 59 b (Sedgebarrow) : four cotmanni, each of whom pays
20d. or works one day a week and two in 'autumn ; two cottarii, each of whom
pays I2d. or works one day a week. Ibid. 69 b (Shipston) : two cotmanni, each
of whom pays 3s. or works like a virgater ; two cottarii, each of whom pays 13d.
Ibid. 76 a (Cropthoru) : two cotmanni, each of whom pays 2s. or works like a
cottarius ; two cottarii, each of whom pays 18d. or works one day a week.
2 Vinogradoff, Villainage, 149, gives a few instances of its occurrence ; but it
seems to be very rare.
3 D. B. i. 127 b, Fuleham : ' Ibi 5 villani quisque 1 hidam.' There are a
good many other instances.
4 D. B. i. 130, Hamntone ; ' et 4 bordarii quisque de dimidia virga.'
8 D. B. i. 127, Herges : ' et 2 cotarii de 13 acris.'
6 D. B. i. 127 b, Fuleham : ' et 22 cotarii de dimidia hida et 8 cotarii de suis
hortis.'
7 D. B. ii. 75 b : ' et 5 bordarii super aquam qui non tenent terrain.'
8 D. B. i. 163 b, Turneberie : ' et 42 villani et 18 radchenistre cum 21 carucis
et 23 bordarii et 15 servi et 4 coliberti.' Ibid. 164, Hechanestede : ' et 5 villani
et 8 bordarii cum 6 carucis ; ibi 6 servi.'
The Villeins. 41
oxen, but he might have more or less. We may find that in
Cornwall a single team of eight is forthcoming where there are 1
3 villani, 4 bordarii, 2 servi
2 2 3
5 2
1 " * M
2K 4.
O )? )5
2 3 1
3 6 3
In some Gloucestershire manors every villein seems to have a
full plough team 2 . Merely economic grades are essentially
indefinite. Who could have defined a ' cottage ' in the eleventh
century ? Who can define one now 3 ?
In truth the vast class of men that we are examining vmeins
and cot-
must have been heterogeneous to a high degree. Not only tiers.
were some members of it much wealthier than others, but
in all probability some were economically subject to others.
So it was in later days. In the thirteenth century we may
easily find a manor in which the lord is paying hardly any
wages. He gets nearly all his agricultural work done for
him by his villeins and his cottiers. Out of his cottiers how-
ever he will get but one day's work in the week. If then we
ask what the cottiers are doing during the rest of their time,
the answer surely must be that they are often working as hired
labourers on the villein's virgates, for a cottier can not have
spent five days in the week over the tillage of his poor little
tenement. It is a remarkable feature of the manorial arrange-
ment that the meanest of the lord's nativi are but rarely working
for him. Thus if we were to remove the lord in order that the
village community might be revealed, we should still see not
only rich and poor, but employers and employed, villagers and
' undersettles.'
Now all these people are in a sense unfree, while yet in some Freedom
other sense they are free. Let us then spend a short while in freedom of
1 D. B. iv. 215-223 ; on p. 223 there are two villani with one ox.
* D. B. i. 164, Tedeneham : ' Ibi erant 38 villani habentes 38 carucas.' Ibid.
164 b, Nortune, ' 15 villani cum 15 carucis ; Stanwelle, 5 villani cum 5 carucis.'
3 Maiden, Domesday Survey of Surrey (Domesday Studies, ii.) 469, says that
in Surrey ' bordarii and cotarii only occur once together upon the same manor,
and very seldom in the same hundred There are three hundreds, Godalming,
Wallington and Elmbridge, where the cotarii are nearly universal to the exclusion
of bordarii. In the others the bordarii are nearly or quite universal, to the
exclusion of the cotarii.'
42 Domesday Book.
discussing the various meanings that freedom may have in a
legal classification of the sorts and conditions of men. When
we have put out of account the rightless slave, who is a thing.
it still remains possible to say that some men are unfree, while
others are free, and even that freedom is a matter of degree.
But we may use various standards for the measurement of
liberty.
Meaning of Perhaps in the first place we shall think of what German
writers call Freizugigkeit, the power to leave the master whom
one has been serving. This power our ancestors would perhaps
have called ' fare- worthiness 1 .' If the master has the right to
recapture the servant who leaves his service, or even if he has
the right to call upon the officers of the state to pursue him
and bring him back to his work, then we may account this
servant an unfree man, albeit the relation between him and his
master has been created by free contract. Such unfreedom is
very distinct from rightlessness. As a freak of jurisprudence
we might imagine a modern nobleman entitled to reduce
by force and arms his fugitive butler to well-paid and easy
duties, while all the same that butler had rights against all
the world including his master, had access to all courts, and
could even sue for his wages if they were not punctually paid.
If we call him unfree, then freedom will look like a matter of
degree, for the master's power to get back his fugitive may be
defined by law in divers manners. May he go in pursuit and
use force ? Must he send a constable or sheriff's officer ? Must
he first go to court and obtain a judgment, 'a decree for specific
performance ' of the contract of service ? The right of recapture
seems to shade off gradually into a right to insist that a breach
of the contract of service is a criminal offence to be punished by
fine or imprisonment.
Then, again, there may seem to us to be more of unfreedom
in the case of one who was born a servant than in the case of
one who has contracted to serve, though we should note that
one may be born to serve without being born rightless.
More to the point than these obvious reflections will be the
remark that in the thirteenth century we learn to think of
various spheres or planes of justice. A right good in one
1 Thorpe, Diplomatarium, 623. King Eadwig declares that a certain church-
ward of Exeter is ' free and fare-worthy.'
The Villeins. 43
sphere may have no existence in another. The rights of the
villeins in their tenements are sanctioned by manorial justice;
they are ignored by the king's courts. Here, again, the ideas of
freedom and unfreedom find a part to play. True that in the
order of legal logic freedom may precede royal protection ; a
tenure is protected because it is free ; still men are soon arguing
that it is free because it is protected, and this probably discloses
an idea which lies deep 1 : the king's courts, the national courts,
are open to the free ; we approach the rightlessness of the slave
if our rights are recognized only in a court of which our lord is
the president.
The thirteenth century will also supply us with the notion
that continuous agricultural service, service in which there is a
considerable element of uncertainty, is unfree service. Where
from day to day the lord's will counts for much in determining
the work that his tenants must do, such tenants, even if they
be free men, are not holding freely. But uncertainty is a
matter of degree, and therefore unfreedom may easily be re-
garded as a matter of degree 2 .
Then, again, in the law books of the Norman age we see
distinct traces of a usage which would make liber or liberalis an
equivalent for our noble, or at least for our gentle. The common
man with the wergild of 200 shillings, though indubitably he
is no servus, is not liberalis homo 3 .
Lastly, in our thirteenth century we learn that privileges
and exceptional immunities are 'liberties' and 'franchises.'
What is our definition of a liberty, a franchise ? A portion of
royal power in the hands of a subject. In Henry III.'s day we
do not say that the Earl of Chester is a freer man, more of a
liber homo, than is the Earl of Gloucester, but we do say that
he has more, greater, higher liberties.
Therefore we shall not be surprised if in Domesday Book
what we read of freedom, of free men, of free land is sadly
obscure. Let us then observe that the villanus both is and is
not a free man.
According to the usual terminology of the Leges, everyone The villein
who is above the rank of a servus, but below the rank of a as free<
thegn, is a villanus. The villanus is the non-noble liber homo.
1 Hist. Eng. Law, i. 341 ff.
2 Hist. Eng. Law, i. 354-8.
8 Liebermann, Instituta Cnuti, Transact. Eoy. Hist. Soc. vii. 93.
44 Domesday Book.
All those numerous sokemen of the eastern counties whom
Domesday ranks above the villani, all those numerous liberi
homines whom it ranks above the sokemen, are, according to
this scheme, villani if they be not thegns. And this scheme is
still of great importance, for it is the scheme of bot and wer.
By what have been the most vital of all the rules of law, all
these men have been massed together ; each of them has a wer
of two hundred shillings 1 . This, we may remark in passing,
is no trivial sum, though the shillings are the small Saxon
shillings of four pence or five pence. There seems to be a good
deal of evidence that for a long time past the ox had been
valued at 30 pence, the sheep at 5 pence 2 . At this rate the
ceorl's death must be paid for by the price of some twenty-four
or thirty oxen. The sons of a villanus who had but two oxen
must have been under some temptation to wish that their
father would get himself killed by a solvent thegn. Very rarely
1 Leg. Will. Conq. i. 8 : 'La were del thein 20 lib. in Merchenelahe, 25 lib.
in Westsexenelahe. La were del vilain 100 sol. en Merchenelahe e ensement
en Westsexene.' Leg. Henr. 70, 1 : 'In Westsexa quae caput regni est et
legum, twyhindi, i.e. villani, wera est 4 lib. ; twelfhindi, i.e. thaini, 25 lib.'
Ibid. 76, 2: ' Omnis autem wera liberorum est aut servorum... liberi alii
twyhindi, alii syxhindi, alii twelfhindi'; 6, twihindus = cyrliscus= villanus.
As to the 100 shillings in the first of these passages, see Schmid, p. 676. There
is some other evidence that the equation, 1 Norman shilling = 2 English shillings,
was occasionally treated as correct enough. As to the six-hynde man, see
Schmid, p. 653 ; we may doubt whether he existed in the eleventh century, but
according to the Instituta Cnuti the radchenistres of the west may have been
six-hynde. We must not draw from Alfred's treaty with the Danes (Schmid,
p. 107) the inference that the normal ceorl was seated on gafol-land. This
international instrument is settling an exceptionally high tariff for the main-
tenance of the peace. Every man, whatever his rank, is to enjoy the handsome
wergild of 8 half-marks of pure gold, except the Danish lysing and the English
ceorl who is seated on gafol-land ; these are to have but the common wer of
200 shillings. The parallel passage in J^thelred's treaty (Schmid, p. 207) sets
30 on every free man if he is killed by a man of the other race. See Schmid,
p. 676.
2 Im, 55 : a sheep with a lamb until a fortnight after Easter is worth
1 shilling. 2Ethelsfan, vi. 6 : a horse 120 pence, an ox 30 pence, a cow 20, a
sheep 1 shilling (5 pence). Ibid. 8, 5 : an ox 30 pence. Schmid, App. i. c. 7 :
a horse 30 shillings, a mare 20 shillings, an ox 30 pence, a cow 24 pence, a swine
8 pence, a sheep 1 shilling, a goat 2 pence, a man (i.e. a slave) 1 pound.
Schmid, App. iii. c. 9 : a sheep or 3 pence. D. B. i. 117 b : an ox or 30 pence.
D. B. i. 26 : Tolls at Lewes ; for a man 4 pence, an ox a halfpenny. This
preserves the equation that we have already seen, namely, 1 slave = 8 oxen. Thus
the full team is worth one pound. On the twelfth century Pipe itolls the ox
often costs 3 shillings ( = 36 pence) or even more.
The Villeins. 45
indeed do the Leges notice the sokeman or mention liberi
homines so as to exclude the villani from the scope of that
term 1 . Domesday Book also on occasion can divide mankind
into slaves and free men. It does so when it tells us that on a
Gloucestershire manor there were twelve servi whom the lord
had made free 2 . It does so again when it tells us that in the
city of Chester the bishop had eight shillings if a free man,
four shillings if a serf, did work upon a festival 3 . So in a
description of the manor of South Perrott in Somerset we
read that a certain custom is due to it from the manor of
'Cruche' (Crewkerne), namely, that every free man must render
one bloom of iron. We look for these free men at ' Cruche ' and
see no one on the manor but villani, bordarii, coliberti and
servi*. Of the Count of Mortain's manor of Bickenhall it is
written that every free man renders a bloom of iron at the
king's manor of Curry ; but at Bickenhall there is no one above
the condition of a villanus 5 . Other passages will suggest that
the villanus sometimes is and sometimes is not liber homo. On
a Norfolk manor we find free villeins, liberi villani 6 .
For all this, however, there must be some very important The villein
sense in which the villanus is not free. In the survey of the as u
eastern counties he is separated from the liberi homines by the
whole class of sochemanni. 'In this manor,' we are told,
' there was at that time a free man with half a hide who has
now been made one of the villeins 7 .' At times the word
1 In Leg. Will. Conq. i. 16, we hear of the forisfacturae (probably the
'insult fines') due to archbishops, bishops, counts, barons and sokemen ; the
baron has 10 shillings, the sokeman 40 pence. In the same document, c. 20,
2, we read of the reliefs of counts, barons, vavassors and villeins. Leg. Edw.
Conf. 12, 4, speaks of the manbot due in the Danelaw; on the death of a
villanus or a socheman 12 ores are paid, on the death of a liber homo 3 marks.
2 D. B. i. 167 b, Heile : ' ibi erant 12 servi quos Willelmus liberos fecit.'
3 D. B. i. 263 : ' Si quis liber homo facit opera in die feriato inde episcopus
habet 8 solidos. De servo autem vel ancilla feriatum diem infringente, habet
episcopus 4 solidos.' Compare Cnut, n. 45.
4 D. B. i. 86 : ' Huic manerio reddebatur T. B. E. de Cruche per annum
consuetude, hoc est 6 oves cum agnis totidem, et quisque liber homo i. blomam
ferri.' South Perrott had belonged to the Confessor, Crewkerne to Edith,
probably ' the rich and fair.' For the description of Cruche see D. B. i. 86 b.
As to the ' bloom ' of iron see Ellis, Introduction, i. 136.
5 D. B. i. 92. See also p. 87 b, the account of Seveberge.
6 D. B. ii. 145.
7 D. B. ii. 1 : ' In hoc manerio erat tune temporis quidam liber homo de
dimiuia hida qui rnodo effectus est unus de villanis.'
46 Domesday Boole.
francus is introduced so as to suggest for a moment that,
though the villein may be liber homo, he is not francus 1 . But
this suggestion, even if it be made, is not maintained, and
there are hundreds of passages which implicitly deny that the
villein is liber homo. But then these passages draw the line
between freedom and unfreedom at a point high in the legal
scale, a point far above the heads of the villani. At least for
the main purposes of Domesday Book the free man is a man who
holds land freely. Let us observe what is said of the men who
have been holding manors. The formula will vary somewhat
from county to county, but we shall often find four phrases used
as equivalent, ' X tenuit et liber homo fuit,' ' X tenuit ut liber
homo/ ' X tenuit et cum terra sua liber fuit,' ' X tenuit libere 2 .'
But this freeholding implies a high degree of freedom, freedom
of a kind that would have shocked the lawyers of a later age.
Anglo- With some regrets we must leave the peasants for a while
Saxon . . L
'free- in order that we may glance at the higher strata of society.
We may take it as certain that, at least in the eyes of
William's ministers, the ordinary holder of a manor in the
time of the Confessor had been holding it under (sub) some
lord, if not of (de) some lord. But then the closeness of the
connexion between him and his lord, the character of the
relation between lord, man and land, had varied much from
case to case. Now these matters are often expressed in terms
of a calculus of personal freedom. But let us begin with some
phrases which seem intelligible enough. The man can, or he
can not, ' sell or give his land ' ; he can, or he can not, ' sell or
give it without the licence of his lord ' ; he can sell it if he has
first offered it to his lord 3 ; he can sell it on paying his lord two
shillings 4 . This seems very simple : the lord can, or (as the
1 Thus D. B. i. 127, Mid. : ' inter francos et villanos 45 carucae' ; Ibid.
70, Wilts: 4 villain et 3 bordarii et unus francus cum 2 carucis' ; Ibid. 241,
Warw. : ' Ibi sunt 3 francones homines cum 4 villanis et 3 bordariis.' Sometimes
francus may be an equivalent for francigena; e.g. i. 254 b, where in one entry we
have unus francigena and in the next unus francus homo. But an Englishman
may be francus ; ii. 54 b ' accepit 15 acras de uno franco teigno et misit cum
terra sua.' However, it is not an insignificant fact that the very name of
Frenchman (francigena) must have suggested free birth.
- For examples see the surveys of Warwick, Stafford and Shropshire.
3 D. B. ii. 260 : ' et 7 homines qui possent vendere terram suam si earn prius
obtulissent domino suo.'
4 D. B. ii. 278 b : ' si vellent recedere daret quisque 2 solidos.' Ibid. 207 :
' et possent recedere si darent 2 solidos.'
The Villeins. 47
case may be) can not, prevent his tenant from alienating the
land ; he has a right of preemption or he has a right to exact
a fine when there is a change of tenants. But then come
phrases that are less in harmony with our idea of feudal tenure.
The man can not sell his land ' away from ' his lord 1 , he can not
give or sell it ' outside ' a certain manor belonging to his lord 2 ,
or, being the tenant of some church, he can not ' separate ' his
land from the church 3 , or give or sell it outside the church 4 .
We have perhaps taken for granted under the influence of Freehold-
later law that an alienation will not impair the lord's rights, "he lord's
and will but give him a new instead of an old tenant. But it is
not of any mere substitution such as this that these men of the
eleventh century are thinking. They have it in their minds
that the man may wish, may be able, utterly to withdraw his
land from the sphere of his lord's rights. Therefore in many
cases they note with some care that the man, though he can
give or sell his land, can not altogether put an end to such
relation as has existed between this land and his lord. He can
sell, but some of the lord's rights will ' remain,' in particular
the lord's ' soke ' over the land (for the present let us say his
jurisdiction over the land) will remain 5 . The purchaser will
not of necessity become the ' man ' of this lord, will not of
necessity owe him any servitium or consuetude, but will come
under his jurisdiction 6 . Interchanging however with these
phrases 7 , we have others which seem to point to the same set
1 D. B. ii. 435 : ' Et super Vlnoht habuit comrnendationem antecessor
E. Malet, teste hundredo, et non potuit vendere nee dare de eo terram suam.'
Ibid. 397 : ' viderunt eum iurare quod non poterat dare [vel] vendere terram
suam ab antecessore Ricardi."
2 D. B. i. 145: 'Hoc manerium tenuit Aluuinus homo Estan, non potuit
dare nee vendere extra Brichelle manerium Estani.'
3 D. B. i. 133 : 'Hanc terram tenuit Aluric Blac 2 bidas de Abbate Westmon-
asterii T. K. E.: non poterat separare ab aecclesia.'
4 D. B. ii. 216 b : ' Ita est in monasterio quod nee vendere nee forisfacere
potest extra ecclesia.'
5 For example, D. B. i. 201: 'terram suam vendere potuerunt, soca vero
remansit Abbati.' D. B. ii. 78: ' et poterant vendere terram set soca et saca
remanebat antecessori Alberici.' Ibid. ii. 92 b : ' unus gochemannus fuit in hac
terra de 15 acris quas poterat vendere, set soca iacebat in Warleia terra S. Pauli.'
6 But the consuetudo, rent or the like, may 'remain': D. B. ii. 181 b : 'et
possent vendere terram suam set consuetudo remauebat in manerio.' And so
the commendatio may ' remain '; ii. 357 b : ' Hi poterant dare et vendere terram,
set saca et soca et commendatio remanebant Sancto [Eadmundo].'
7 For example, D. B. i. 201 : ' Homines Abbatis de Ely fuerunt et 4 terram
48 Domesday Book.
of distinctions, but to express them in terms of personal free-
dom. The man can, or else he can not, withdraw from his lord,
go away from his lord, withdraw from his lord's manor ; he can
or he can not withdraw with his land ; he can or can not go to
another lord, or go wherever he pleases 1 . Some of these
phrases will, if taken literally, seem to say that the persons of
whom they are used are tied to the soil ; they can not leave
the land, or the manor, or the soke. Probably in some of
these cases the bond between man and lord is a perpetual bond
of homage and fealty, and if the man breaks that bond by
refusing the due obedience or putting himself under another
lord, he is guilty of a wrong 2 . But of pursuing him and
capturing him and reducing him to servitude there can be
no talk. Many of these persons who ' can not recede ' are men
of wealth and rank, of high rank that is recognized by law,
they are king's thegns or the thegns of the churches, they are
' twelve-hundred men 3 .' However, it is nob the man's power to
leave his lord so much as the power to leave his lord and take
his land with him, that these phrases bring to our notice;
or rather the assumption is made that no one will want to
leave his lord if he must also leave his land behind him. And
then this power of taking land from this lord and bringing it
under another lord is conceived as an index of personal freedom.
Thus we read: 'These men were so free that they could go
suam vendere potuerunt, soca vero remansit Abbati, et quartus 1 virgam et dimi-
diam habuit et recedere non potuit.' See the important evidence produced by
Round, Feudal England, 24, as to the equivalence of these phrases.
1 One of the commonest terms is recedere 'potuit recedere' 'non potuit
recedere' ; i. 41, ' non potuit cum terra recedere ad alium dominum ' ; i. 56 b, '10
liberi homines T. R. E. tenebaut 12 hidas et dimidiam de terra eiusdem manerii
sed inde recedere non poterant'; ii. 19 b, 'non poterant recedere a terra sine
licentia Abbatis ' ; ii. 57 b, ' non poterant recedere ab illo manerio ' ; ii. 66, 'non
poterant removere ab illo manerio ' ; ii. 41, ' non poterant recedere a soca Wisgari ' ;
ii. 41 b, ' nee poterant alire sine iussu domini' ; i. 66 b, ' qui tenuit T. R. E. non
poterat ab aecclesia diverti [separari] ' ; ii. 116, ' unus [burgensis] erat ita domini-
cus ut non posset recedere nee homagium facere sine licentia [Stigandi]'; ii. 119,
' de istis hominibus erant 36 ita dominice Regis Edwardi ut non possent csse
homines cuiuslibet sed semper tamen consuetude regis remanebat preter herigete.'
A remarkable form is, ii. 57 b, ' non potuit istam terrain mittere in aliquo loco
nisi in abbatia.' Then 'potuit ire quo voluit,' 'non potuit ire quolibet' are
common enough.
2 Ine, c. 3'J : He who leaves his lord without permission pays sixty shillings
to his lord.
3 For example, D. B. i. 41 : ' Tres taini tenuerunt de episcopo et nou potuerunl
ire quolibet.'
The Villeins. 49
where they pleased 1 / and again, ' Four sokemen held this land,
of whom three were free, while the fourth held one hide but
could not give or sell it 2 .' Not that no one is called a liber
homo unless he has this power of ' receding ' from his lord ; far
from it ; all is a matter of degree ; but the free man is freer if
he can 'go to what lord he pleases,' and often enough the
phrases ' X tenuit et liber homo fuit,' ' X tenuit libere,' ' X
tenuit ut liber homo ' seem to have no other meaning than this,
that the occupant of the land enjoyed the liberty of taking it
with him whithersoever he would. Therefore there is no
tautology in saying that the holder of the land was a thegn
and a free man, though of course there is a sense, there are
many senses, in which every thegn is free 3 . All this talk of
the freedom that consists in choosing a lord and subjecting land
to him may well puzzle us, for it puzzled the men of the
twelfth century. The chronicler of Abingdon abbey had to
explain that in the old days a free man could do strange
things 4 .
Comparisons may be instituted between the freedom of one The scale
free man and that of another : ' Five thegns held this land of holding.
Earl Edwin and could go with their land whither they would, and
below them they had four soldiers, who were as free as them-
selves 5 .' A high degree of liberty is marked when we are told
that, ' The said men were so free that they could sell their land
with soke and sake wherever they would 6 .' But there are yet
higher degrees of liberty. Of Worcestershire it is written,
' When the king goes upon a military expedition, if anyone who
is summoned stays at home, then if he is so free a man that he
has his sake and soke and can go whither he pleases with his
land, he with all his land shall be in the king's mercy 7 .' The
1 D. B. i. 35 b, Tornecrosta. 3 D. B. i. 212 b, Stanford.
3 D. B. i. 249 b: ' Tres taini tenuerunt et liberi homines fuerunt'; 256,
' Ipsi taini liberi erant ' ; 259 b, ' Quatuor taini tenuerunt ante eum et liberi
fuerunt.'
4 Chron. Abingd. i. 490: 'Nam quidam dives, Turkillus nomine, sub Haroldi
comitis testimonio et consultu, de ae cum sua terra quae Kingestun dicitur,
ecclesiae Abbendonensi et abbati Ordrico homagium fecit ; licitum quippe libero
cuique, illo in tempore, sic agere erat.'
6 D. B. i. 180 b: 'et poterant ire curn terra quo volebant, et habebant sub se
4 milites, ita liberos ut ipsi erant.'
D. B. ii. 59.
7 D. B. i. 172: 'si ita liber homo est ut habeat socam suam et sacarn et cum
terra sua possit ire quo voluerit.'
M. 4
50 Domesday Book.
free man is the freer if he has soke and sake, if he has juris-
diction over other men. Exceptional privileges, immunities
from common burdens, are already regarded as ' liberties.' This
is no new thing; often enough when the Anglo-Saxon land
books speak of freedom they mean privilege.
Free land. The idea of freedom is equally vague and elastic if, instead
of applying it to men, we apply it to land or the tenure of land.
Two bordarii are now holding a small plot ; ' they themselves
held it freely in King Edward's day 1 .' Here no doubt there
has been a fall ; but how deep a fall we can not be sure. To
say that a man's land is free may imply far more freedom than
freehold tenure implies in later times ; it may imply that the
bond between him and his lord, if indeed he has a lord, is of a
purely personal character and hardly gives the lord any hold
over the land 2 . But this is not all. Perfect freedom is not
attained so long as the land owes any single duty to the state.
Often enough but exactly how often it were no easy task to tell
the libera terra of our record is land that has been exempted
even from the danegeld; it is highly privileged land 3 . Let
us remember that at the present day, though the definition of
free land or freehold land has long ago been fixed, we still speak
as though free land might become freer if it were ' free of land-
tax and tithe rent-charge.'
dOTQ^tht If now we return to the villanus and deny that he is liber
villein. homo and deny also that he is holding freely, we shall be saying
little and using the laxest of terms. There are half-a-dozen
questions that we would fain ask about him, and there will be
no harm in asking them, though Domesday Book is taciturn.
Snin h be ^ ^ e free to ( l u * fc k" 8 loi% d an d his land, or can he be pursued
pursued?
1 D. B. i. 84 b.
2 D. B. ii. 213 : ' Hanc terrain calumpniatur esse liberam Vlchitel homo
Hermeri, quocunque modo iudicetur, vel bello vel iudicio, et alius est praesto
probare eo modo quod iacuit ad ecclesiam [S. Adeldredae] die quo rex Edwardus
obiit. Set totus hundretus testatur earn fuisse T. R. E. ad S. Adeldredam.'
9 See in particular the survey of Gloucestershire; D. B. i. 165 b: 'Hoc
manerium quietum est a geldo et ab omni forensi servitio praeter aecclesiae ' ;
Ibid. ' Haec terra libera fuit et quieta ab omni geldo et regali servitio ' ; 170,
4 Una hida et dimidia libera a geldo.' When after reading these passages we
come upon the following (167 b), ' Isdem W. tenet Tatinton: Ulgar tenuit de
rege Edwardo: haec terra libera est,' and when we observe that the land is not
hidated, we shall probably infer that 'This land is free' means 'This land is
exempt from geld, and (perhaps) from all other royal service.'
The Villeins. 5 1
and captured ? No one word can be obtained in answer to this
question. We can only say that in Henry II.'s day the ordinary
peasant was regarded by the royal officials as ascriptitius ; the
land that he occupied was said to be part of his lord's demesne ;
his chattels were his lord's 1 . But then this was conceived to be,
at least in some degree, the result of the Norman Conquest and
subsequent rebellions of the peasantry 2 . To this we may add
that in one of our sets of Leges, the French Leis of William the
Conqueror, there are certain clauses which would be of great im-
portance could we suppose that they had an authoritative origin,
and which in any case are remarkable enough. The nativus
who flies from the land on which he is born, let none retain him
or his chattels ; if the lords will not send back these men to
their land the king's officers are to do it 3 . On the other hand,
the tillers of the soil are not to be worked beyond their proper
rent ; their lord may not remove them from their land so long
as they perform their right services 4 . Whether or no we
suppose that in the writer's opinion the ordinary peasant was a
nativus (of nativi Domesday Book has nothing to say) we still
have law more favourable to the peasant than was the common
law of Bracton's age : a tiller who does his accustomed service
is not to be ejected ; he is no tenant at will.
Hereafter we shall show that the English peasants did suffer Earity of
by the substitution of French for English lords. But the question fllght '
that we have asked, so urgent, so fundamental, as it may seem
to us, is really one which, as the history of the Roman coloni
might prove, can long remain unanswered. Men may become
economically so dependent on their lords, on wealthy masters
and creditors, that the legal question whether they can quit
their service has no interest. Who wishes to leave his all and
go forth a beggar into the world ? On the whole we can
find no evidence whatever that the men of the Confessor's
day who were retrospectively called villani were tied to the
soil. Certainly in Norman times the tradition was held that
1 Dialogus, i. c. 11 ; ii. c. 14. 2 Dialogus, i. c. 10.
z Will. Conq. i. 30, 31 : 'Si lea seignurages ne facent altri gainurs venir a
lour terre, la justise le facet.' The Latin version is ridiculous : ' Si domini
terrarum non procurent idoneos cultores ad terras suas colendas, iustitiarii hoc
faciant.' The translator seems to have been puzzled by the word altri or
uutrui.
4 Ibid. 29.
42
52 Domesday Book.
according to the old law the villanus might acquire five hides
of land and so 'thrive to thegn-right 1 .'
The villein Our next question should be whether he was subject to
nodal" 8 seignorial justice. This is part of a much wider question that
justice. we mus t face hereafter, for seignorial justice should be treated
as a whole. We must here anticipate a conclusion, the proof of
which will come by and by, namely, that the villanus sometimes
was and sometimes was not the justiciable of a court in which
his lord or his lord's steward presided. All depended on the
answer to the question whether his lord had ' sake and soke.'
His lord might have justiciary rights over all his tenants,
or merely over his villani, or he might have no justiciary rights,
for as yet ' sake and soke ' were in the king's gift, and the mere
fact that a lord had 'men' or tenants did not give him a juris-
diction over them.
The villein With this question is connected another, namely, whether
the villani had a locus standi in the national courts. We have
seen six villani together with the priest (undoubtedly a free
man) and the reeve of each vill summoned to swear in the great
inquest*. One of the most famous scenes recorded by our book
is that in which William of Chernet claimed a Hampshire manor
on behalf of Hugh de Port and produced his witnesses irom
among the best and eldest men of the county ; but Picot, the
sheriff of Cambridgeshire, who was in possession, replied with
the testimony of villeins and mean folk and reeves, who were
willing to support his case by oath or by ordeal 8 . Again, in
Norfolk, Roger the sheriff claimed a hundred acres and five
villani and a mill as belonging to the royal manor of Branfort,
and five villani of the said manor testified in his favour and
1 Schmid, App. v.; vn., 2, 9-11; Pseudoleges Canuti, 60-1 (Schmid,
p. 431).
* D. B. iv. 497.
8 D. B. i. 44 b: 'Istam terram calumpniatur Willelmus de Chernet, dicens
pertinere ad manerium de Cerneford feudum Hugonis de Port per hereditatem
sui antecessoris et de hoc suum testimouium adduxit de melioribus et antiquis
hominibus totius comitatus et hundredi; et Picot contraduxit suum testimonium
de villanis et vili plebe et de prepositis, qui volunt defendere per sacramentum
vel del iudicium, quod ille qui tenuit terram liber homo fuit et potuit ire cum
terra sua quo voluit. Sed testes Willelmi iiolunt accipere legem nisi regis
Edwardi usque dum diffiniatur per regem.' It seems possible that William's
witnesses wished to insist on the ancient rule that the oath of one thegn would
countervail the oaths of six ceorls. This was the old English law (lex Edwardi)
on which they relied.
The Villeins. 53
offered to make whatever proof anyone might adjudge to them,
but the half-hundred of Ipswich testified that the land belonged
to a certain church of S*. Peter that Wihtgar held, and he offered
to deraign this 1 . Certainly this does not look as if villani were
excluded from the national moots. But a rule which valued the
oath of a single thegn as highly as the oath of six ceorls would
make the ceorl but a poor witness and tend to keep him out of
court 2 . The men who are active in the communal courts, who
make the judgments there, are usually men of thegnly rank;
but to go to court as a doomsman is one thing, to go as a
litigant is another 3 .
We may now approach the question whether, and if so in The villein
what sense, the land that the villanus occupies is his land. \^^
Throughout Domesday Book a distinction is sedulously main-
tained between the land of the villeins (terra villanorum) and
the land that the lord has in dominio. Let us notice this phrase.
Only the demesne land does the lord hold in dominio, in owner-
ship. The delicate shade of difference that Bracton would see
between dominicum and dominium is not as yet marked. In
later times it became strictly correct to say that the lord held
in demesne (in dominico suo) not only the lands which he occu-
pied by himself or his servants, but also the lands held of him
by villein tenure 4 . This usage appears very plainly in the
Dialogue on the Exchequer. ' You shall know,' says the writer,
'that we give the name demesnes (dominica) to those lands
that a man cultivates at his own cost or by his own labour, and
also to those which are possessed in his name by his ascriptitii ;
for by the law of this kingdom not only can these ascriptitii be
removed by their lords from the lands that they now possess
and transferred to other places, but they may be sold and
dispersed at will ; so that rightly are both they and the lands
which they cultivate for the behalf of their lords accounted to
be dominia 5 .' Far other is the normal, if not invariable, usage
of Domesday Book. The terrae villanorum, the silvae villanorum,
1 D. B. ii. 393 : 'et 5 villani de eodem manerio testantur ei et offerunt legem
qualem quis iudicaverit ; set dimidium hundret de Gepeswiz testantur quod hoc
iacebat ad ecclesiam T. E. E. et Wisgarus tenebat et offert derationari.'
2 Scbmid, App. vi. ; Leg. Hen. 61 2: 'thaini iusiurandum contravalet
iusiurandum sex villanorum.'
3 Leg. Hen. 29, 1. Hist. Eng. Law, i. 344.
5 Dialogus, i. c. 1L
54 Domesday Book
the piscariae villanorum, the molini villanorum for the villeins
have woods and fisheries and mills these the lord does not hold
in dominio 1 . Then again the oxen of the villeins are carefully
distinguished from the oxen of the demesne, while often enough
they are not distinguished from the oxen of those who in every
sense are free tenants 2 . Now as regards both the land and the
oxen we seem put to the dilemma that either they belong to
the lord or else they belong to the villeins. We cannot avoid
this dilemma, as we can in later days, by saying that according
to the common law the ownership of these things is with the
lord, while according to the custom of the manor it is with the
villeins, for we believe that a hall-moot, a manorial court, is still
a somewhat exceptional institution.
On the whole we can hardly doubt that both in their land
and in their oxen the villeins have had rights protected by law.
Let us glance once more at the scheme of lot and wer that has
been in force. A villein is slain; the manbot payable to his
lord is marked off from the much heavier wergild that is payable
to his kindred. If all that a villein could have belonged to his
lord such a distinction would be idle.
The va- Still we take it that for one most important purpose the
ami the 1 " villein's land is the lord's land : the lord must answer for the
ge g e ld that is due from it. Not that the burden falls ultimately
on the lord. On the contrary, it is not unlikely that he makes
his villeins pay the geld that is due from his demesne land ; it
is one of their services that they must 'defend their lord's
1 D. B. i. 67 b : ' De terra villanorum dedit abbatissa uni militi 3 hidas et
dimidiam.' Ibid. 89: 'tenet Johannes de episcopo 2 hidas de terra villanorum.'
Ibid. i. 169 : 'unus francigena tenet terram unius villani.' Ibid. 164 : 'In Sauerna
11 piscariae in dominio et 42 piscariae villanorum.' Ibid. 230 : ' SUva dominica
1 leu. long, et dim. leu. lat. Silva villanorum 4 quarent. long, et 3 quarent.
lat.' Ibid. 7 b : '5 molini villanorum.' We have not seen dominicum used as a
substantive ; but in the Exon. D. B. iv. 75 we have dominicatus Regis, for the
king's demesne. There is already a slight ambiguity about the term dominium.
We may say that a church has a manor in dominio, meaning thereby that the
manor as a whole is held by the church itself and is not held of it by any
tenant; and then we may go on to say that only one half of the land com-
prised in this manor is held by the church in dominio. Of. Hist. Eng. Law,
ii. 1*6.
2 1 or example, D. B. i. 159 : ' Nunc in dominio 3 carucae et 6 servi, et 26
villani cum 3 bordariis et 15 liberi homines habent 30 carucas.' Ibid. 165: 'In
dominio 2 carucae et 9 villani et 6 bordarii et presbyter et unus rachenistre cum
10 carucis.' Ibid. 258 b : ' et 3 villani et 2 bordarii et 2 francigenae cum 2
carucis. ' But such entries are common enough.
The Villeins. 55
inland ' against the geld. But over against the state the lord
represents as well the land of his villeins as his own demesne
land. From the great levy of 1 084 the demesne lands of the
barons had been exempted 1 , but no doubt they had been
responsible for the tax assessed on the lands held by their
villani. We much doubt whether the collectors of the geld
went round to the cottages of the villeins and demanded here
six pence and there four pence ; they presented themselves at
the lord's hall and asked for a large sum. Nay, we believe that
very often a perfectly free tenant paid his geld to his lord, or
through his lord 2 . Hence arrangements by which some hides
were made to acquit other hides; such, for example, was the
arrangement at Tewkesbury ; there were fifty hides which had
to acquit the whole ninety-five hides from all geld and royal
service 3 . And then it might be that the lord, enjoying a
special privilege, was entitled to take the geld from his tenants
and yet paid no geld to the king; thus did the canons of
S*. Petroc in Cornwall 4 and the monks of S 1 . Edmund in Suffolk 5 .
But as regards lands occupied by villeins, the king, so it seems
to us, looks for his geld to the lord and he does not look behind
the lord. This is no detail of a fiscal system. A potent force
has thus been set in motion. He who pays for land, it is but
fair that he should be considered the owner of that land. We
have a hint of this principle in a law of Cnut : ' He who has
" defended " land with the witness of the shire, is to enjoy it with-
out question during his life and on his death may give or sell it
to whom he pleases 6 .' We have another hint of this principle
in a story told by Heming, the monk of Worcester: in Cnut's
time but four days of grace were given to the landowner for
1 Hound, Domesday Studies, i. 97.
2 D. B. i. 28: 'Ipse Willelmus de Braiose tenet Wasingetune....De hac terra
tenet Gislebertus dim. hidam, Kadulfus 1 hidam, Willelmus 3 virgas, Leuuinus
dim. bidam qui potuit recedere cuni terra sua et dedit geldum domino suo
et dorninus suus nichil dedit.'
s D. B. i. 163, 163 b.
4 D. B. i. 121 : ' Omnes superius descriptas terras tenebant T. B. E.
S. Petrocns ; huius sancti terrae nunquam reddiderunt geldum nisi ipsi aeccle-
siae.' D. B. iv. 187 : ' Terrae S. Petrochi nunquam reddiderunt gildum nisi
sancto.'
8 D. B. ii. 372: 'Et quando in hundreto solvitur ad geldum 1 libra tune inde
exeunt 60 denarii ad victurn monachorum.'
6 Cnut, ii. 79 : ' And se \>e land gewerod heebbe be scire gewitnisse....' The
A.-S. werian is just the Latin defenders.
56 Domesday Book.
the payment of the geld ; when these had elapsed, anyone who
paid the geld might have the land 1 . It is a principle which, if
it is applied to the case of lord and villein, will attribute the
ownership of the land to the lord and not to the villein.
The vil- And then we would ask : What services do the villeins
vices. 8 * render? A deep silence answers us, and as will hereafter be
shown, there are many reasons why we should not import the
information given us by the monastic cartularies, even such
early cartularies as the Black Book of Peterborough, into the
days of the Confessor. No doubt the villeins usually do some
labour upon the lord's demesne lands. In particular they help
to plough it. A manor, we can see, is generally so arranged
that the ratio borne by the demesne oxen to the demesne land
will be smaller than that borne by the villeins' oxen to the
villeins' land. Thus, to give one example out of a hundred, in
a Somersetshire manor the lord has four hides and three teams,
the villeins have two hides and three teams 2 . But then the
lord gets some help in his agriculture from those who are
undoubtedly free tenants. The teams of the free tenants are
often covered by the same phrase that covers the teams of the
villeins 3 . Radknights who are liberi homines plough and harrow
at the lord's court 4 . The veiy few entries which tell us of the
labour of the villeins are quite insufficient to condemn the whole
class to unlimited, or even to very heavy work. On a manor in
Herefordshire there are twelve bordiers who work one day in
the week 5 . On the enormous manor of Leominster there are
238 villani and 85 bordarii. The villani plough and sow with
their own seed 140 acres of their lord's land and they pay
1 Heming, Cartulary, i. 278; Round, Domesday Studies, i. 89. Compare
the story in D. B. i. 216 b : Osbern or Osbert the fisherman claims certain land
as having belonged to his ' antecessor ' ; ' sed postquam rex Willelmus in
Angliam venit, ille gablum de hao terra dare noluit et Eadulfus Taillgebosc
gablum dedit et pro forisfacto ipsam terram sumpsit et cuidam suo militi
tribuit.'
2 D. B. iv. 245, Cruca.
3 See above p. 54, note 2.
* D. B. i. 103: ' Ibi erant villani 21 et 9 rachenistres habentes 26 carucas
et 5 coliberti et unus bordarius cum 5 carucis. Hi rachenistres arabant et
herciabant ad curiam domini.' Ibid. 'Ibi 19 liberi homines rachenistres
habentes 48 carucas cum suis hominibns.' Ibid. 166 : ' De terra huiua manerii
tenebant radchenistres, id est liberi homines, T. B. E., qui tamen oranes ad opus
domini arabant et herciabant et falcabant et metebant.'
6 D. B. i. 186, Ewias.
The Villeins. 57
11 pounds and 52 pence 1 . On the manor ot Marcle, which
also is in Herefordshire, there are 36 villani and 10 bordarii
with 40 teams. These villani plough and sow with their own
seed 80 acres of wheat and 71 of oats 2 . At Kingston, yet
another manor in the same county, ' the villani who dwelt
there in King Edward's day carried venison to Hereford and
did no other service, so says the shire 3 .' On one Worcestershire
manor of Westminster Abbey 10 villeins and 10 bordiers with
6 teams plough 6 acres and sow them with their own seed ; on
another 8 villeins and 6 bordiers with 6 teams do the like by
4 acres 4 . This is light work. Casually we are told of burgesses
living at Tamworth who have to work like the other villeins of
the manor of Drayton to which they are attached 5 , and we are
told of men on a royal manor who do such works for the king as
the reeve may command 6 ; but, curiously enough, it is not of any
villeins but of the Bishop of Worcester's riding men (radmanni)
that it is written ' they do whatever is commanded them 7 .'
With our thirteenth century cartularies before us, we might Money
T rents paid
easily underrate the amount or money that was already being by villeins.
paid as the rent of land at the date of the Conquest. In several
counties we come across small groups of censarii, censores,
gablatores who pay for their land in money, of cervisarii
and mellitarii who bring beer and honey. Renders in kind,
in herrings, eels, salmon are not uncommon, and sometimes
they are ' appreciated,' valued in terms of money. The pannage
pig or the grass swine, which the villeins give in return for mast
and herbage, is often mentioned. Throughout Sussex it seems
to be the custom that the lord should have ' for herbage ' one
pig from every villein who has seven pigs 8 . But money will be
taken instead of swine, oxen or fish 9 . The gersuma, the tailla,
1 D. B.
8 D. B.
5 D. B.
sicnt villan
6 D. B.
7 D. B.
. 180. a D. B. i. 179 b.
. 179 b. * D. B. i. 174 b.
. 246 b. So the burgesses of Steyning (i. 17) 'ad curiam operabantur
T. B. E.'
.219.
. 174 b : ' Ipsi radmans secabant una die in anno et omne servitium
quod eis iubebatnr faciebant.' The position of these tenants will be discussed
hereafter in connexion with S e . Oswald's charters.
8 D. B. i. 16 b : ' De herbagio, unus porous de unoquoque villano qui habet
septem porcos.' In the margin stands ' Similiter per totum Sussex.'
9 D. B. i. 12 b : ' Ibi tantum silvae unde exeunt de pasnagio 40 porci aut
54 denarii et unus obolus.' Ibid. 191 b: ' De presentacione piscium 12 solidi et
9 denarii.' Ibid. 117 b : ' aut unum bovem aut 30 denarios.'
58 Domesday Book.
the theoretically free gifts of the tenants, are sums of money.
But often enough the villanus is paying a substantial money
rent. We have seen how at Leominster villeins plough and
sow 140 acres for their lord and pay a rent of more than 11 1 .
At Lewisham in Kent the Abbot of Gand has a manor valued
at 30 ; of this 2 is due to the profits of the port while two
mills with 'the gafol of the rustics' bring in 8. 12s. 2 Such
entries as the following are not uncommon there is one villein
rendering 30d 8 there is one villein rendering 10s. 4 46 cotarii
with one hide render 30 shillings a year 6 the villeins give
13s. 4>d. by way of consuetude 6 . No doubt it would be somewhat
rare to find a villein discharging all his dues in money this is
suggested when we are told how on the land of S l . Augustin one
Wadard holds a large piece 'de terra villanorum' and yet
renders no service to the abbot save 30s. a year 7 . At least
in one instance the villeins seem to be holding the manor
in farm, that is to say, they are farming the demesne land and
paying a rent in money or in provender 8 . We dare not represent
the stream of economic history as flowing uninterruptedly from
a system of labour services to a system of rents. We must
remember that in the Conqueror's reign the lord very often had
numerous serfs whose whole time was given to the cultivation
of his demesne. In the south-western counties he will often
have two, three or more serfs for every team that he has on his
demesne, and, while this is so, we can not safely say that his
husbandry requires that the villeins should be labouring on his
land for three or four days in every week.
The Eng- As a last question we may ask : What was the English for
villanus ? It is a foreign word, one of those words which came
in with the Conqueror. Surely, we may argue, there must have
been some English equivalent for it. Yet we have the greatest
difficulty in finding the proper term. True that in the Quadri-
partitus and the Leges villanus generally represents ceorl ; ceorl
when it is not rendered by villanus is left untranslated in some
such form as cyrliscus homo. But then ceorl must be a wider
1 See above p. 56. 2 D. B. i. 12 b.
8 D. B. i. 11 b, Hamestede. * D. B. i. 117 b, Colun.
8 D. B. i. 127, Stibenhede. e D. B. i. 179 b, Leno.
7 D. B. i. 12 b, Norborne.
8 D. B. i. 127 b: ' Wellesdone tenent canonici S. Pauli....Hoc manerium
tenent villani ad firmam canonicorum. In dominio nil habetur.'
The Villeins. 59
word than the villanus of Domesday Book, for it has to cover
all the non-noble free men ; it must comprehend the numerous
sochemanni and liberi homines of northern and eastern England.
This in itself is not a little remarkable ; it makes us suspect
that some of the lines drawn by Domesday Book are by no
means very old; they can not be drawn by any of those
terms that have been current in the Anglo-Saxon dooms or
which still are current in the text-books that lawyers are
compiling. To suppose that villanus is equivalent to gebur
is impossible; we have the best warrant for saying that the
Latin for gebur is not villanus but colibertus 1 . Nor can we
hold that the villanus is a geneat. In the last days of the old
English kingdom the geneat, the 'companion/ the 'fellow/
appears as a horseman who rides on his lord's errands; we
must seek him among the radmanni and rachenistres and
drengi of Domesday Book 2 . We shall venture the guess that
when the Norman clerks wrote down villanus, the English
jurors had said tunesman. As a matter of etymology the two
words answer to each other well enough ; the villa is the tun,
and the men of the villa are the men of the tun. In the
enlarged Latin version of the laws of Cnut, known as Instituta
Cnuti, there is an important remark : tithes are to be paid both
from the lands of the thegn and from the lands of the villeins
' tarn de dominio liberalis hominis, id est ]?egenes, quam de terra
villanorum, id est tuumannes (con*, tunmannes) 3 / Then in a
collection of dooms known as the Northumbrian Priests' Law
there is a clause which orders the payment of Peter's pence.
If a king's thegn or landlord (landrica) withholds his penny,
he must pay ten half-marks, half to Christ, half to the king;
but if a tunesman withholds it, then let the landlord pay it and
take an ox from the man 4 . A very valuable passage this is.
It shows us how the lord is becoming responsible for the man's
taxes: if the tenant will not pay them, the lord must. It is
then in connexion with this responsibility of the lord that the
term townsman meets us, and, if we mistake not, it is the lord's
responsibility for geld that is the chief agent in the definition
1 See above p. 36.
8 This matter will be discussed when we deal with S*. Oswald's charters.
3 Schmid, p. 263 (note). This document is Dr Liebermann's Instituta
Cnuti (Trans. Roy. Hist. Soc. vii. 77).
4 Schmid, App. u. 57-9.
60 Domesday Book.
of the class of villani. The pressure of taxation, civil and
ecclesiastical, has been forming new social strata, and a new
word, in itself a vague word, is making its way into the
vocabulary of the law 1 .
Summary. The class of villeins may well be heterogeneous. It may
well contain (so we think) men who, or whose ancestors, have
owned the land under a political supremacy, not easily to be
distinguished from landlordship, that belongs to the king ; and,
on the other hand, it may well contain those who have never in
themselves or their predecessors been other than the tenants of
another man's soil. In some counties on the Welsh march there
are groups of hospites who in fact or theory are colonists whom
the lord has invited onto his land 2 ; but this word, very common
in France, is not common in England. Our record is not
concerned to describe the nature or the origin of the villein's
tenure; it is in quest of geld and of the persons who
ought to be charged with geld, and so it matters not whether
the lord has let land to the villein or has acquired rights over
land of which the villein was once the owner. Therefore
we lay down no broad principle about the rights of the villein,
but we have suggested that taken in the mass the villani of
the Confessor's reign were far more 'law-worthy' than were the
villani of the thirteenth century. We can not treat either the
legal or the economic history of our peasantry as a continuous
whole; it is divided into two parts by the red thread of the
Norman Conquest. That is a catastrophe. William might do
his best to make it as little of a catastrophe as was possible, to
insist that each French lord should have precisely the same
rights that had been enjoyed by his English antecessor; it may
even be that he endeavoured to assure to those who were
becoming villani the rights that they had enjoyed under King
Edward 3 . Such a task, if attempted, was impossible. We
hear indeed that the English 'redeemed their lands,' but
probably this refers only to those English lords, those thegns
or the like, who were fortunate enough to find that a ransom
would be accepted 4 . We have no warrant for thinking that
1 For the rest, the word tunesman appears in Edgar iv. 8, 13, in connexion
with provisions against the theft of cattle.
2 D. B. i. 259, 259 b.
3 Leg. Will. i. 29.
4 D. B. ii. 360 b : 'Hanc terrain habet Abbas in vadimonio pro duabus marcis
The Villeins. 61
the peasants, the common ' townsmen/ obtained from the king
any covenanted mercies. They were handed over to new lords,
who were very free in fact, if not in theory, to get out of them
all that could be got without gross cruelty.
We are not left to speculate about this matter. In after Depression
days those who were likely to hold a true tradition, the great villeins,
financier of the twelfth, the great lawyer of the thirteenth
century, believed that there had been a catastrophe. As a
result of the Conquest, the peasants, at all events some of the
peasants, had fallen from their free estate ; free men, holding
freely, they had been compelled to do unfree services 1 . But if
we need not rely upon speculation, neither need we rely upon
tradition. Domesday Book is full of evidence that the tillers
of the soil are being depressed.
Here we may read of a free man with half a hide who The Nor-
has now been made one of the villeins 2 , there of the holder the pea-
of a small manor who now cultivates it as the farmer of a sants '
French lord graviter et miserabiliter 3 , and there of a sokeman
who has lost his land for not paying geld, though none was
due 4 ; while the great Richard of Tonbridge has condescended
to abstract a virgate from a villein or a villein from a virgate 5 .
But, again, it is not on a few cases in which our record states
that some man has suffered an injustice that we would rely.
Rather we notice what it treats as a quite common event.
auri concessu Engelrici quando redimebant Anglici terras suas.' Sometimes
the Englishman gets back his land as a bedesman : i. 218, ' Hanc terram tenuit
pater huius hominis et vendere poterit T. K. E. Hanc rex Willelmus in elemosina
eidem concessit ' ; i. 211, ' Hanc terram tenuit Avigi et potuit dare cui vomit
T. E. E. Hanc ei postea rex Willelmus concessit et per breve E. Talleboso
commendavit ut eum servaret ' ; i. 218 b, a similar case.
1 Dialogus, i. c. 10 ; Bracton, f. 7. On both passages see Viuogradoff,
Villainage, p. 121,
3 D. B. ii. 1 : 'In hoc manerio erat tune temporis quidam liber homo...qui
modo effectus est unus de villanis.'
3 D. B. i. 148 b : 'In Merse tenet Ailric de Willelmo 4 hidas pro uno
manerio.... Isteraet tenuit T. E. E. sed modo tenet ad nrmam de Willelmo
graviter et miserabiliter.'
4 D. B. i. 141 : ' Hanc terram sumpsit Petrus vicecomes de isto sochemanno
Eegis Willelmi in manu eiusdem Eegis pro forisfactura de gildo Eegis se non
reddidisse ut homines sui dicunt. Sed homines de scira non portant vicecomiti
testimonium, quia semper fuit quieta de gildo et de aliis erga Eegem quamdiu
tenuit, testante hundret.'
5 D. B. i. 30: 'Eicardus de Tonebrige tenet de hoc manerio uuam virgatam
cum silva unde abstulit rusticum qui ibi manebat.'
62 Domesday Book.
Free men are being ' added to ' manors to which they did not
belong. Thus in Suffolk a number of free men have been
added to the manor of Montfort; they pay no 'custom' to it
before the Conquest, but now they pay 15 ; ^Elfric who was
reeve under Roger Bigot set them this custom 1 . Hard by
them were men who used to pay 20 shillings, but this same
^Elfric raised their rent to 100 shillings 2 . 'A free man held
this land and could sell it, but Waleran father of John has
added him to this manor 3 ' : Entries of this kind are common.
The utmost rents are being exacted from the farmers: this
manor was let for three years at a rent of 12 and a yearly
gift of an ounce of gold, but all the farmers who took it were
ruined 4 that manor was let for 3. 15s. but the men were
thereby ruined and now it is valued at only 45s. 5 About
these matters French and English can not agree : this manor
renders 70 by weight, but the English value it at only 60 by
tale 6 the English fix the value at 80, but the French at
100 7 Frenchmen and Englishmen agree that it is worth 50,
but Richard let it to an Englishman for 60, who thereby lost
10 a year, at the very least 8 . 'It can not pay/ 'it can hardly
pay,' ' it could not stand ' the rent, such are the phrases that we
hear. If the lord gets the most out of the farmer to whom he
has leased the manor, we may be sure that the farmer is
making the most out of the villeins.
Depression But the most convincing proof of the depression of the
sokemen. peasantry comes to us from Cambridgeshire. The rural
population of that county as it existed in 1086 has been
classified thus 9 :
sochemanni 213
villaiii 1902
bordarii 1428
cotarii 736
servi 548
1 D. B. ii. 282 b : ' et istam consuetudinem constituit illis Aluricus prepositus
in tempore B. Bigot.'
2 D. B. ii. 284 b. D . B. ii. 84 b.
4 D. B. ii. 353 b: 'omnes fuerunt confusi.'
8 D. B. ii. 440 b : ' sed homines inde fuerunt confusi.'
D. B. i. 65, Aldeborne. 1 D. B. a 18) Berdringas.
8 D. B. ii. 38 b, Tachesteda.
9 Ellis, Introduction, ii. 428. We give Ellis's figures, but think that he has
exaggerated the number of sokemen who were to be found in 1086.
The Villeins. 63
But we also learn that the Cambridgeshire of the Confessor's
day had contained at the very least 900 instead of 200
sokemen 1 . This is an enormous and a significant change. Let
us look at a single village. In Meldreth there is a manor ; it
is now a manor of the most ordinary kind; it is rated at 3 hides
and 1 virgate, but contains 5 team-lands ; in demesne are half
a hide and one team, and 15 bordarii and 3 cotarii have 4 teams,
and there is one servus. But before the Conquest this land was
held by 15 sokemen ; 10 of them were under the soke of the
Abbey of Ely and held 2 hides and half a virgate ; the other
5 held 1 hide and half a virgate and were the men of Earl
^Elfgar 2 . What has become of these fifteen sokemen ? They
are now represented by fifteen bordiers and five cottiers ; and
the demesne land of the manor is a new thing. The sokemen
have fallen, and their fall has brought with it the consolidation
of manorial husbandry and seignorial power. At Orwell Earl
Roger has now a small estate; a third of it is in demesne, while
the residue is held by 2 villeins and 3 bordiers, and there is a
serf there. This land had belonged to six sokemen, and those
six had been under no less than five different lords; two
belonged to Edith the Fair, one to Archbishop Stigand, one
to Robert Wi marc's son, one to the king, and one to Earl
^Elfgar 3 . Displacements such as this we may see in village
after village. No one can read the survey of Cambridgeshire
without seeing that the freer sorts of the peasantry have been
thrust out, or rather thrust down.
Evidence so cogent as this we shall hardly find in any part Further
of the record save that which relates to Cambridgeshire and tious'of
Bedfordshire. But great movements of the kind that we are de P ression -
examining will hardly confine themselves within the boundaries
of a county. A little variation in the formula which tells us
who held the land in 1066 may hide from us the true state of
the case. We can not expect that men will be very accurate
in stating the legal relationships that existed twenty years ago.
Since the day when King Edward was alive and dead many
things have happened, many new words and new forms of
thought have become familiar. But taking the verdicts as we
1 We make considerably more than 900 by counting only those who are
expressly described as sokemen and excluding the many persons who are simply
described as homines capable of selling their land.
2 Hamilton, Inquisitio, 65. 3 Hamilton, Inquisitio, 77.
64 Domesday Book.
find them, there is still no lack of evidence. In Essex we may
see the liberi homines disappearing 1 . But we need not look
only to the eastern counties. At Bromley, in Surrey, Bishop
Odo has a manor of 32 hides, 4 of which had belonged to ' free
men ' who could go where they pleased, but now there are only
villeins, cottiers, and serfs 2 . We turn the page and find Odo
holding 10 hides which had belonged to ' the alodiaries of the
villV In Kent Hugh de Port is holding land that was held by
6 free men who could go whither they would ; there are now
6 villeins and 14 bordiers there, with one team between them 4 .
Students of Domesday were too apt to treat the antecessores of
the Norman lords as being in all cases lords of manors. Lords
of manors, or rather holders of manors, they often were, but as
we shall see more fully hereafter, when we are examining the
term manerium, such phrases are likely to deceive us. Often
enough they were very small people with very little land. For
example these six free men whom Hugh de Port represents had
only two and a half team-lands. We pass by a few pages
and find Hugh de Montfort with a holding which comprises but
one team-land and a half; he has 4 villeins and 2 bordiers
there. His antecessores were three free men, who could go
whither they would 5 . They had need for but 12 oxen; they
had no more land than they could easily till, at all events with
the help of two or three cottagers or slaves. To all appearance
they were no better than peasants. They or their sons may
still be tilling the land as Hugh's villeins. When we look
for such instances we very easily find them. The case is not
altered by the fact that the term 'manor' is given to the
holdings of these antecessores. In Sussex an under-tenant of
Earl Roger has an estate with four villeins upon it. His
antecessores were two free men who held the land as two
manors. And how much land was there to be divided between
the two ? There was one team-land. Such holders of tnaneria
were tillers of the soil, peasants, at best yeomen 6 . If they were
of thegnly rank, this again does not alter the case. When in
the survey of Dorset we read how four thegns held two
1 Thus e.g. D. B. ii. 87 b: 'Hidingham tenet Garengerus de Kogero pro
25 noris quas tenuerunt 15 liberi homines T. B. E. 1
- D. B. i. 31.
3 D. B. i. 31 b: ' Et lOhidas tenebant alodiarii villae.'
4 D. B. i. 10 b. 6 D. B. i. 13, Essella.
6 D. B. i. 24.
The Villeins. 65
team-lands, how six thegns held two team-lands, eight thegns
two team-lands, nine thegns four team-lands, eleven thegns four
team-lands 1 , we can not of course be certain that each of these
groups of co-tenants had but one holding ; but thegnly rank is
inherited, and if a thegn will have nine or ten sons there will
soon be tillers of the soil with the wergild of twelve hundred
shillings. Now if these things are being done in the middling
strata of society, if the sokemen are being suppressed or
depressed in Cambridgeshire, the alodiaries in Sussex, what
is likely to be the fate of the poor? They will have to till
their lord's demesne graviter et miser abiliter. He can afford to
dispense with serfs, for he has villeins.
A last argument must be added. What we see in the thir- The pea-
teenth century of the ancient demesne of the crown 2 might the r S oyal
lead us to expect that in Domesday Book 'the manors o f demesne -
S 1 . Edward ' would stand out in bold relief. Instead of a popu-
lation mainly consisting of villeins shall we not find upon them
large numbers of sokemen, the ancestors of the men who in
after days will be protected by the little writ of right and the
Monstraverunt ? Nothing of the kind. The royal manor differs
in no such mode as this from any other manor. If it lies in a
county in which other manors have sokemen, then it may or
may not have sokemen. If it lies in a county in which other
manors have no sokemen, it will have none. Cambridgeshire
is a county in which there are some, and have been many,
sokemen; there is hardly a sokeman upon the ancient demesne.
In after days the men of Chesterton, for example, will have all
the peculiar rights attributed by lawyers to the sokemen of
S fc . Edward. But S fc . Edward, if we trust Domesday Book, had
never a sokeman there; he had two villeins and a number of
bordiers and cottiers 3 . It seems fairly clear that from an early
time, if not from the first days of the Conquest onwards, the
king was the best of landlords. The tenants of those manors
that were conceived as annexed to the crown, those tenants one
and all, save the class of slaves which was disappearing, got a
better, a more regular justice than that which the villeins of
other lords could hope for. It was the king's justice, and there-
forefor the king's public and private capacities were hardly
1 D. B. 83, 83 b.
2 Vinogradoff, Villainage, 89 ft. ; Hist. Engl. Law, i. 366 ff.
8 D. B. i. 189 b.
M.
66 Domesday Book.
to be distinguished it was public justice, and so became formal
justice, defined by writs, administered in the last resort by the
highest court, the ablest lawyers. And so sokemen disappear from
private manors. Some of them as tenants in free socage may
maintain their position; many fall down into the class of tenants
in villeinage. On the ancient demesne the sokemen multiply ;
they appear where Domesday knew them not; for those who
are protected by royal justice can hardly (now that villeinage
implies a precarious tenure) be called villeins, they must be
'villein sokemen' at the least. Whether or no we trust the
tradition which ascribes to the Conqueror a law in favour of the
tillers of the soil, we can hardly doubt that the villani and
bordarii whom Domesday Book shows us on the royal manors
are treated as having legal rights in their holdings. And if
this be true of them, it should be true of their peers upon other
manors. Yes, it should be true ; the manorial courts that are
arising should do impartial justice even between lord and
villeins ; but who is to make it true ?
4. The Sokemen.
The soche- Now of a large part of England we may say that all the
Tiberiho 1 - occupiers of land who are not holding ' manors 1 ' will belong to
some of those classes of which we have already spoken. They
will be villeins, bordiers, cottiers, 'boors' or serfs. Here and
there we may find a few persons who are described as liberi
homines. In some of the western counties, Gloucester, Wor-
cester, Hereford, Shropshire, there are rachenistres or radmans ',
between the Ribble and the Mersey we may find a party of
. drengs. Still it is generally true that two of those five classes
that seem to have been mentioned in King William's writ 2 ,
the sochemanni and the liberi homines, are largely represented
only in certain counties. They are to be seen in Essex, yet
more thickly in Suffolk and Norfolk. In Lincolnshire nearly
half of the rural population consists of sokemen, though there is
no class of persons described as liberi homines. There are some
1 We shall see hereafter that some of these so-called ' manors ' are but small
plots and their holders small folk.
2 See above p. 24.
The Sokemen.
sokemen in Yorkshire, but they are not very numerous and
there are hardly any liberi homines. We have seen how in
Cambridgeshire and Bedfordshire the sokemen have fared ill;
but still some are left there. Traces of them may be found in
Hertford and Buckingham; they are thick in Leicester, Notting-
ham and Northampton ; there are some in Derbyshire. There
have been sokemen in Middlesex 1 and in Surrey 2 ; but they
have been suppressed; a few remain in Kent 8 ; so we should
be rash were we to find anything characteristically Scandinavian
in the sokemen. Even in Suffolk they are suffering ill at the
hands of their new masters 4 , while in Cambridgeshire, Bedford-
shire, Hertfordshire they have been suppressed or displaced.
We have now to enter on a difficult task, a discussion of Lord and
the relation which exists between these sochemanni and liberi man -
homines on the one hand and their lord upon the other. The
character of this relation varies from case to case. We may
distinguish three different bonds by which a man may be
bound to a lord, a personal bond, a tenurial bond, a juris-
dictional or justiciary bond. But the language of Domesday
Book is not very patient of this analysis. However in the
second volume we very frequently come upon two ideas which
are sharply contrasted with each other; the one is expressed by
the term commendatio, the other by the term soca s . To these
we must add the great vague term consuetudo, and we shall
also have to consider the phrases which describe the various
degrees of that freedom of 'withdrawing himself with his land'
that a man may enioy.
T J J J Bonds be-
order that we may become familiar with the use made ^
of these terms and phrases we will transcribe a few typical
entries :
1 D. B. i. 128 b, 129, 129 b.
2 D. B. i. 34, 35 b. 3 D. B. i 13
' B ' "'J 28 vu There ai ' e free men ' a PP arentl y 120 in number, of whom it
LI liberi homines qui tempore regis Eduardi pertinebant in soca de
Bercoit unus q u lsque gratis dabat preposito per annum 4 tantum denarios, et
eddebat socam Bicnt lex ferebat, et quando Bogerius Bigot prius habuit vice-
Mteta. s atuerunt ministri sui quod redderent 15 libras per annum, quod
non faciebant TEE. Et quando Eobertus Malet habuit vicecomitatum sui
rderunt C s?mnu e n r ^ "^ E * ^^ E geriU8 BlgOt 6 8 rehabuit
^ t T^ R V > ra8 - E * m d tenet eos Aluricus Wanz tali consuetu-
6 Compare Bound, Feudal England, 33.
52
68 Domesday Bool:.
Two free men, of whom .^Elfwin had not even the commen-
dation 1 .
Of these men Harold had not even the commendation 2 .
Thus commendation seems put before us as the slightest bond
that there can be between lord and man. Very often we are
told that the lord had the commendation and nothing more 3 .
Thus it is contrasted with the soke :
His predecessor had only the commendation of this, and
Harold had the soke*.
Of these six free men St Benet had the soke, and of one of
them the commendation 5 .
And the commendation is contrasted with the 'custom/ the
consuetude, perhaps we might say the ' service ' :
Of the said sokeman Ralph Peverel had a custom of 3 shillings
a year, but in the Confessor's time his ancestor had only the
commendation 6 .
R. Malet claims 18 free men, 3 of them by commendation,
and the rest for all custom 7 .
And the soke is contrasted with the consuetude :
To this manor belong 4 men for all custom, and other 4 for
soke only 8 .
In a given case all these bonds may be united :
There are 7 sokemen who are the Saint's men with sake and
soke and all custom 9 .
Over this man the Saint has sake and soke and commendation
with all custom 10 .
Then if the man ' withdraws/ or gives or sells his land, we often
1 D. B. ii. 187 b : ' Ex his non habuit Ailwinus suus antecessor etiam com-
meudationem.'
2 D. B. ii. 287 : 'De his hominibus...non habuit Haroldus etiam commenda-
tioiiem.'
3 D. B. ii. 153 b : ' Unde suus antecessor habuit commendatiouem tantum.'
Ibid. 154 : ' Alstan liber homo Edrici commend[atione] tantum.'
4 D. B. ii 161 b. s D. B. ii. 244.
8 D. B. ii. 6 : ' De predicto sochemano habuit Bad. Piperellus consuetudinem
in unoquoque anno per 3 solidos, set in T. B. E. non habuit eius antecessor nisi
tantum modo commendationem. '
7 D. B. ii. 171 b : Calumpniatur B. Malet 18 liberos homines, 3 commenda-
tione et alios de omni consuetudine. '
8 D. B. ii. 250 b : ' Huic manerio adiacent semper 4 homines de ornui con-
suetudine et alii 4 ad socham tantum.'
9 D. B. ii. 356 b. w D. B. ii. 357.
The Sokemen. 69
read of the soke ' remaining ' ; we sometimes read of the com-
mendation, the custom, the service ' remaining.'
These free men could sell or give their land, but the commen-
dation and the soke and sake would remain to St Edmund 1 .
These men could sell their land, but the soke would remain to
the Saint and the service (&ervitium\ whoever might be the buyer 2 .
They could give and sell their land, but the soke and the com-
mendation and the service would remain to the Saint 3 .
But after all, these distinctions are not maintained with rigour,
for the soke is sometimes spoken of as though it were a species
of consuetudo. We have a tangled skein in our hands.
The thread that looks as if it would be the easiest to Commen-
unravel, is that which is styled ' mere commendation.' The
same idea is expressed by other phrases 'he committed
himself to Bishop Herman for his defence 4 ' 'they submitted
themselves with their land to the abbey for defence 8 ' 'he
became the man of Goisfrid of his own free will 8 ' 'she put
herself with her land in the hand of the queen 7 / ' Homage ' is
not a common term in Domesday Book, but if, when speaking
of the old time, it says, as it constantly does, that one person
was the man of another, no doubt it is telling us of a relation-
ship which had its origin in an oath and a symbolic ceremony 8 .
' She put herself into the hands of the queen ' we should take
these words to mean just what they say. An Anglo-Saxon
oath of fealty (hylddS) has been preserved 9 . The swearer
promises to be faithful and true to his lord, to love all that
his lord loves and eschew all that his lord eschews. He makes
no distinct reierence to any land, but he refers to some compact
1 D. B. ii. 353 b.
2 D. B. ii. 362 : ' set eoca reinaneret sancto et servitium quicunque terrain
emeret.'
3 D. B. ii. 358.
4 D. B. i. 58 : ' Pater Tori tenuit T. E. E. et potuit ire quo voluit sed pro sua
defensione se commisit Hermanno episcopo et Tori Osmundo episcopo similiter."
5 D. B. i. 32 b : ' set pro defensione se cum terra abbatiae summiserunt.'
6 D. B. ii. 62 b : ' et T. E. W. effectus est homo Goisfridi sponte sua.'
7 D. B. i. 36 b : ' T. E. W. femina quae hanc terrain teuebat misit se cum ea
in manu reginae.' Ibid. 36 : ' Quidam liber homo hanc terrain tenens et quo
vellet abire valens commisit se in defensione Walterii pro defensione sua.'
8 D. B. ii. 172 : ' Hos calumpniatur Drogo de Befrerere pro homagio taiitum.'
This seems equivalent to the common 'commendatione tantum.' D. B. i. 225 b :
'fuerunt homines Burred et iccirco G. episcopus olarnat hominationem eorum.'
8 Schmid, App. x.
70 Domesday Book.
which exists between him and his lord : He will be faithful
and true on condition that his lord treats him according to his
deserts and according to the covenant that has been established
between them.
Commen- To all seeming there need not be any land in the case ;
protection, and, if the man has land, the act of commendation will not give
the lord as a matter of course any rights in that land. Cer-
tainly Domesday Book seems to assume that in general every
owner or holder of land must have had a lord. This assumption
is very worthy of notice. A law of ^thelstan 1 had said that
lordless men ' of whom no right could be had ' were to have
lords, but this command seems aimed at the landless folk,
not at those whose land is a sufficient surety for their good
behaviour. The law had not directly commanded the landed
men to commend themselves, but it had supplied them with
motives for so doing 2 . What did a man gain by this act of
submission ? Of advantages that might be called ' extra-legal '
we will say nothing, though in the wild days of ^Ethelred the
Unready, and even during the Confessor's reign, there was
lawlessness enough to make the small proprietor wish that he
had a mightier friend than the law could be. But there were
distinct legal advantages to be had by commendation. In the
first place, the life of the great man's man was protected not
only by a wer-gild, but by a man-bdt : a man-bdt due to one
who had the power to exact it ; and if, as one of our authorities
assures us, the amount of the man-bot varied with the rank of
the lord 3 , this would help to account for a remarkable fact
disclosed by Domesday Book, namely, that the chosen lord was
usually a person of the very highest rank, an earl, an archbishop,
the king. Then, again, if the man got into a scrape, his lord
might be of service to him. Suppose the man accused of thef D :
in certain cases he might escape with a single, instead of a
triple ordeal, if he had a lord who would swear to his good
character 4 . In yet other cases his lord would come forward as
his compurgator ; perhaps he was morally bound to do so ; and,
* Atheist, n. 2.
2 Also it had declared that every man must have a pledge, and probably the
easiest way of fulfilling this command was to place oneself under a lord who
would put one into a tithing.
3 Leg. Edw. Conf. 12, 5 ; but this is contradicted by Leg. Henr. 87, 4.
4 JSthelr. i. 1, 2 ; compare ^Ethelr. in. 3, 4.
The SoJcemen. 71
being a man of high rank, would swear a crushing oath. And
within certain limits that we can not well define the lord might
warrant the doings of his man, might take upon himself the task
of defending an action to which his man was subjected 1 . What
the man has sought by his submission is defensio, tuitio', the
lord is his defensor, tutor, protector, advocatus, in a word, his
warrantor 2 .
Of warranty we are accustomed to think chiefly in connexion Commen-
with the title to land : the feoffor warrants the feoffee in his warranty,
enjoyment of the tenement. But to all appearance in the
eleventh century it is rather as lord than as giver, seller or
lender, that the vouchee comes to the defence of his man. If
the land is conceived as having once been the warrantor's land,
this may be but a fiction : the man has given up his land and
then taken it again merely in order that he may be able to say
with some truth that he has it by his lord's gift. But we can
not be sure that as yet any such fiction is necessary. ' I will
defend any action that is brought against you for this land ' :
as yet men see no reason why such a promise as this, if made
with due ceremony, should not be enforced. A certain amount
of ' maintenance ' is desirable in their eyes and laudable.
Though we began with the statement that where there is Commen-
commendation there may yet be no land in the case, we have tenure. 1 " 1
none the less been already led to the supposition that often
enough land does get involved in this nexus between man and
lord. No doubt a landless man may commend himself and get
no land in return for his homage ; but with such an one Domes-
day Book is not concerned. The cases in which it takes an
interest are those in which a landholder has commended
himself. Now we dare not say that a landholder can never
commend himself without commending his land also 8 . Howbeit,
the usual practice certainly is that a man who submits or
commits himself for 'defence' or 'protection' shall take his
land with him; he 'goes with his land' to a lord. Very
1 Leg. Hen. 82, 6 ; 85, 2.
3 D. B. ii. 18 b : ' inde vocat dominum snum ad tutorem.' Ibid. 103 : ' vocavit
Ilbodonem ad tutorem et postea non adduxit tutorem.' Ibid. 31 b : ' revocat earn
ad defensorem.' D. B. i. 141 b : 142 : ' sed Harduinus reclamat Petrum vicecomi-
tem ad protectorem.' Ibid. 227 b : ' et dicit regem suum advocatum esse."
3 D. B. ii. 71 b : ' Phenge tenet idem Serlo de K[<mulfo Piperello] quod
tenuit liber homo...qui T. E. W. effectus est homo antecessoris Ranulfi Piperelli,
set terram suam sibi non dedit.' This however is not quite to the point.
72 Domesday Book.
curious are some of the instances which show how large a
liberty men have enjoyed of taking land wherever they please.
"Tostig bought this land from the church of Malmesbury for
three lives ' : in this there is nothing strange ; leases for three
lives granted by churches to thegns have been common. But
of course we should assume that during the lease the land could
have no other lord than the church of Malmesbury. Not so,
however, for during his lease Tostig ' could go with that land
to whatever lord he pleased 1 .' In Essex there was before the
Conquest a man who held land; that land in some sort belonged
to the Abbey of Barking, and could not be separated from the
abbey ; but the holder of it was the man (' merely the man '
say the jurors) of one Leofhild the predecessor of Geoffrey de
Mandeville 2 . In this last case we may satisfy ourselves by
saying that a purely personal relation is distinguished from a
tenurial relation; the man of Leofhild is the tenant of the
abbey. But what of Tostig's case ? Land that he holds of the
church of Malmesbury, and that too by no perpetual tenure, he
can commend to another lord. From the man's point of view,
protection, defence, warranty, is the essence of commendation,
and the warranty that he chiefly needs is the warranty of his
possession, of the title by which he holds his land. It can not
but be therefore that the lord to whom he commends himself
and his land, should be in some sort his landlord.
The lord's Not that he need pay rent, or perform other services in
commenda- return for the land. The land is his land ; he has not obtained
it from his lord ; on the contrary he has carried it to his lord.
Mere commendation is therefore distinguished by a score of
entries from a relation that involves the payment of consue-
tudines. Doubtless however the lord obtains 'a valuable
consideration ' for all that he gives. Part of this will probably
lie without the legal sphere. He has a sworn retainer who will
fight whenever he is told to fight. But even the law allows the
man to go great lengths in his lord's defence 3 . In a rough age
1 D. B. i. 72 : ' Toti emit earn T. B. E. de aecclesia Malmesburiensi ad
etatem trium hominum et infra hunc terminum poterat ire cum ea ad quern
vellet dominum.'
3 D. B. ii. 57 b : ' Et haec terra quam modo tenet G. fuit in abbatia de
Berchingis sicuti hundret testatur ; set ille qui tenuit hane terrain fuit tantuni
modo homo [Leuild] antecessoris Goisfiidi et non potuit istam terrain mittere
in aliquo loco nisi in abbatia.'
8 Leg. Hen. 82, 3.
The Sokemen. 73
happy is the lord who has many sworn to defend him. When
at a later time we see that the claimant of land must
offer proof 'by the body of a certain free man of his,' we are
taught that the lords have relied upon the testimony and the
strong right arms of their vassals. That in all cases the lord
got more than this we can not say, though perhaps commen-
dation carried with it the right to the heriot, the horse and
armour of the dead man 1 . The relation is often put before us
as temporary. Numerous are the persons who ' can seek lords
where they choose' or who can 'go with their land wherever
they please.' How large a liberty these phrases accord to lord
and man it were hard to tell. We can not believe that either
party to the contract could dissolve it just at the moment when
the other had some need to enforce it ; but still at other times
the man might dissolve it, and we may suppose that the lord
could do so too. But the connexion might be of a more
permanent kind. Perhaps in most cases in which we are told
that a man can not withdraw his land from his lord the bond
between them is regarded as something other than commenda-
tion there is commendation and something more. But this is
no universal truth. You might be the lord's man ' merely by
commendation ' and yet be unable to sell your land without the
lord's leave 2 . At any rate, in one way and another ' the com-
mendation ' is considered as capable of binding the land. The
commended man will be spoken of as holding the land under
(ifub) his lord, if nob of (de) his lord 3 . In many cases if he sells
the land ' the commendation will remain to his lord ' by which
is meant, not that the vendor will continue to be the man of
1 D. B. ii. 118 b : 'In burgo [de Tetfort] autem erant 943 burgenses T. R. E.
De his habuit Bex omnem consuetudinem. De istis hominibus erant 36 ita
dominice Regis E. ut non possent esse homines alicuius sine licentia Regis.
Alii omnes poterant esse homines cuiuslibet set semper tamen consuetude Regis
remanebat prefer herigete.' Compare D. B. i. 336 b, Stamford : ' In hiscustodiis
sunt 72 mansi sochemanorum, qui habent terras suas in dominio, et qui petunt
dominos ubi volunt, super quos Rex nichil aliud habet nisi emendationem
forisfacturae eorum et heriete et theloneum.' In this case commendation would
not carry the heriot with it.
2 D. B. ii. 201 : ' Liber homo de 80 acris terrae Almari episcopi et Ahvoldi
abbatis commend[atione] tantum, et hie homo erat ita in monasterio quod non
potuit dare terram suam nee vendere. ' See another entry of the same kind on
the same page.
3 D. B. i. 50 b : ' Hie Alwinus tenuit hanc terram T. R. E. sub Wigoto pro
tuitione ; inodo tenet earn sub Milone.'
74 Domesday Booh.
that lord (for the purposes of the Domesday Inquest this would
be a matter of indifference) but that the lord's rights over the
land are not destroyed. The purchaser comes to the land and
finds the commendation inhering in it 1 .
These!- And so, again, the lord's rights under the commendation
the com- seem to constitute an alienable and heritable seignory. It is
e ' thus that we may best explain the case, very common in East
Anglia, in which a man is commended half to one and half to
another lord 2 . Thus we read of a case in which a free man was
commended, as to one-third to Wulfeige, and as to the residue to
Wulfsige's two brothers 8 . In this instance it seems clear that
the commendation has descended to three co-heirs. In other
cases a lord may have made over his rights to two religious
houses ; thus we hear of a man who is common to the Abbots
of Ely and S'. Edmund's 4 . In some cases a man may, in others
he may not, be able to prevent himself being transferred from
lord to lord, or from ancestor to heir. What passes by alienation
or inheritance may be regarded rather as a right to his commen-
dation than as the commendation itself 5 . Of course there is
nothing to hinder one from being the man of several different
lords. ^Elfric Black held lands of the Abbot of Westminster
which he could not separate from the church, but for other
lands he was the man of Archbishop Stigand 8 . Already a lofty
edifice is being constructed; B, to whom C is commended, is
himself commended to A ; and in this case a certain relation
exists between C and A ; C is ' sub-commended ' to A 7 .
case *^ e somewhat vague obligation of the
1 For example, D. B. ii. 353 b : ' Hii poterant dare et vendere terram suam
T. B. E. set commend[atio] et soca et saca remanebat S. Edmundo.'
2 D. B. ii. 182 b : ' Ulchetel habuit dimidiam commendationem de illo T. R. E.
ct de uxore ipsius totam commendationem.' Ibid. 249 b : ' Medietas istius hominis
fuit antecessoris Baingnardi commendatione tantum et alia medietas S. Edmundi
cum dimidia terra. ' The contrast between dimidii homines and integri homines
is common enough. See D. B. ii. 309 : one man has a sixth and another five-
siiths of a commendation.
8 D. B. ii. 333 b. 4 D. B. ii. 125 b.
5 D. B. i. 58. Tori ' committed himself for defence ' to Bp. Herman ; Tori's
eon has done the same to Osmund, the successor of Herman.
D. B. i. 133 : ' sed pro aliis terris homo archiepiscopi Stigandi fuit.'
7 On the whole this seems to be the meaning of ' sub-commendation.' We
read a good deal of men who were sub-commended to the antecessor of Robert
Malet. This seems to be explained by such an entry as the following (ii. 313 b) :
' Eadric holds two free men who were commended to Eadric, who himself was
commended to (another) Eadric, the antecessor of Robert Malet.'
The SoJcemen. 75
commended man may be rendered definite by a bargain which
imposes upon him the payment of rent or the performance of
some specified services. When this is so, we shall often find
that the land is moving, if we may so speak, not from the man
but from the lord. The man is taking land from the lord to
hold during good behaviour 1 , or for life 2 , or for lives. A form
of lease or loan (l&n) which gives the land to the lessee and to
two or three successive heirs of his, has from of old been
commonly used by some of the great churches 3 . Also we
see landowners giving up their land to the churches and
taking it back again as mere life tenants. During their
lives the church is to have some ' service,' or at least some
' recognition ' of its lordship, while after their deaths the church
will have the land in demesne 4 . This is something different
from mere commendation. We see here the feuda oblata or
beneficia oblata which foreign jurists have contrasted with feuda
or beneficia data. The land is brought into the bargain by the
man, not by the lord. But often the land comes from the lord,
and the tenancy is no merely temporary tenancy; it is herit-
able. The king has provided his thegns with lands ; the earls,
the churches have provided their thegns with lands, and these
thegns have heritable estates, and already they are conceived
as holding them of (de) the churches, the earls, the king. But
we must not as yet be led away into any discussion about the
architecture of the very highest storeys of the feudal or vassalic
edifice. It must at present suffice that in humbler quarters
there has been much letting and hiring of land. The leases, if
we choose to call them so, the gifts, if we choose to call them so,
have created heritable rights and perdurable relationships.
There is no kind of service that can not be purchased by a Land-loans
grant or lease of land. Godric's wife had land from the king vices?*"
1 D. B. i. 45 b : ' Quidam frater Edrici tenuit tali conventions, quod quamdiu
bene se haberet erga earn [Edricum] tamdiu terram de eo teneret, et si vendere
vellet, non alicui nisi ei de quo tenebat vendere vel dare liceret.'
2 Cases of life tenancies will be found in D. B. i. 47, Stantune; 67 b, Newetone;
80, Catesclive ; 177 b, Witune ; ii. 373, 444 b.
3 D. B. i. 46 b, 66 b, 72, 175. We shall return to this when in the next essay
we speak of loanland.
4 D. B. i. 67 b : ' Hano terram reddidit sponte sua aecclesiae Hardingus qui in
vita sua per conventfionem] debebat tenere.' See also the case in i. 177 b.
Again, ii. 431 : ' terram quam cepit cum uxore sua...misit in ecclesia concedente
muliere tali conventione quod non potuit vendere nee dare de aecclesia." For a
' recognitio ' see i. 175, Persore.
76 Domesday Book.
because she fed his dogs 1 . ^Elfgyfu the maiden had land from
Godric the sheriff that she might teach his daughter orfrey
work 2 . The monks of Pershore stipulate that their dominion
shall be recognized by ' a day's farm ' in every year, that is, that
the lessee shall once a year furnish the convent with a day's
victual 3 . The king's thegns between the Kibble and the Mersey
have ' like villeins ' to make lodges for the king, and fisheries and
deer-hays, and must send their reapers to cut the king's crops at
harvest time 4 . The radmen and radknights of the west must
ride on their lord's errands and make themselves generally use-
ful ; they plough and harrow and mow, and do whatever is
commanded them 5 .
The man's But we would here speak chiefly of the lowly 'free men'
dims. and sokemen of the eastern counties. Besides having their
commendation and their soke, the lord very often has what
is known as their consuetudo or their consuetudines. Often
they are the lord's men de omni consuetudine. In all probability
the word when thus employed, when contrasted with commen-
dation on the one hand and with soke on the other, points to
payments and renders to be made in money and in kind and to
services of an agricultural character. Of such services only one
stands out prominently ; it is very frequently mentioned in the
survey of East Anglia ; it is fold-soke, soca faldae. The man
must not have a fold of his own; his sheep must lie in the
lord's fold. It is manure that the lord wants ; the demand for
manure has played a large part in the history of the human race.
Often enough this is the one consuetudo, the one definite service,
that the lord gets out of his free men 6 . And then a man who is
consuetus ad faldam, tied to his lord's fold, is hardly to be con-
sidered as being in all respects a ' free ' man. Those who are
1 D. B. i. 57 b.
2 D. B. i. 149 : 'De his tenuit Aluuid puella 2 hidas...et de dominica firma
Regis Edwardi habuit ipsa dimidiam hidam quam Godricus vicecomes ei con-
cessit quamdiu vicecomes esset, ut ilia doceret filiam ejus aurifrisium operari.'
a D. B. i. 175 : ' Hanc emit quidam Godricus teinus regis Edwardi vita trium
haeredum et dabat in anno monachis unam firmam pro recognitione. '
4 D. B. i. 269 b.
8 See above p. 56. Their tenure will be discussed hereafter in connexion
with St. Oswald's land-loans.
6 D. B. ii. 187 b : ' In Carletuna 27 liberi homines et dimidius sub Olfo
commendatione tantum et soca falde...l5 liberi homines sub Olfo sooa falde et
commendatione tantum.'
The SoJcemen. 77
not 'fold-worthy' are to be classed with those who are not
' moot- worthy ' or ' fyrd-worthy.' We are tempted to say that
a man's caput is diminished by his having to seek his lord's fold,
just as it would be diminished if he were excluded from the
communal courts or the national host 1 . From the nature of this
one consuetudo and from the prominence that is given to it, we
may guess the character of the other consuetudines. Suit to the
lord's mill would be analogous to suit to his fold 2 . Of ' mill-soke '
we read nothing, but often enough a surprisingly large part of
the total value of a manor is ascribed to its mill, and we may
argue that the lord has not invested capital in a costly under-
taking without making sure of a return. We may well suppose
that like the radmen of the west the free men and sokemen of
the east give their lord some help in his husbandry at harvest
time. From a document which comes to us from the abbey of
Ely, and which is slightly older than the Domesday Inquest, we
learn that certain of S*. Etheldreda's sokemen in Suffolk had
nothing to do but to plough and thresh whenever the abbot
required this of them; others had to plough and weed and reap,
to carry the victual of the monks to the minster and furnish
horses whenever called upon to do so 3 . This seems to point
rather to ' boon-days ' than to continuous ' week-work,' and we
observe that the sokemen of the east like the radmen of the
west have horses. Occasionally we learn that a sokeman has to
pay an annual sum of money to his lord ; sometimes this looks
1 D. B. li. 203 b : ' In eadem villa 12 homines 6 quorum erant in soca falde
et alii 6 erant liberi.' Ibid. 361 b: '70 liberi... super hos homines habet et
semper habuit sacam et socam et omnem consuetudinem et ad faldam pertinent
omnes preter 4.' Ibid. ii. 207 : ' 17 liberi homines consueti ad faldam et com-
mendati.' The term ' fold-worthy ' occurs in a writ of Edward the Confessor ;
he gives to St. Benet of Eamsey soke over such of the men of a certain district as
are moot-worthy, fyrd-worthy, and fold-worthy : Earle, Land Charters, p. 343 ;
Kemble, iv. p. 208.
2 In later extents of East Anglian manors the fold-soke plays an important
part. Cart. Earns, iii. 267 : ' B. tenuit unam carucatam terrae cum falda sua
pro octo solidis. A. dabat pro terra sua quadraginta denarios et oves eius erant
in falda Abbatis...H. triginta acras pro quatuor solidis et oves eius sunt in manu
domini....'
3 See the document printed by Hamilton at the end of the Inquisitio Com.
Cautabr. p. 192. ' Isti solummodo arabunt et contererent messes eiusdem loci
quotienscunque abbas preceperit. ..." ' Ita proprie sunt abbati ut quotienscunque
ipse preceperit in anno arabunt suam terram, purgabunt et colligent segetes,
portabunt victum nionachorum ad monasterium, equos eorum in suis necessita-
tibus semper habebit.' For more of this matter see Bound, Feudal England, 30.
78 Domesday Book.
like a substantial rent, sometimes like a mere 'recognition';
but the words that most nearly translate our 'rent,' redditus,
census, gablum are seldom used in this context. All is con-
suetudo.
Nature of It is an interesting word. We perhaps are eager to urge
dine*? U the dilemma that in these cases the land must have been brought
into the bargain either by the lord or by the tenant : either the
lord is conceived as having let land to the tenant, or the theory
is that the tenant has commended land to the lord. But the
dilemma is not perfect. It may well be that this relationship
is thought of as having existed from all time ; it may well be
that this relationship, though under slowly varying forms, has
really existed for several centuries, and has had its beginning in
no contract, in no bargain. In origin the rights of the lord may
be the rights of kings and ealdormen, rights over subjects rather
than rights over tenants. The word consuetude covers taxes as
well as rents, and, if the sokeman has to do work for his lord,
very often, especially in Cambridgeshire and Hertfordshire, he
has to do work for the king or for the sheriff also. If he has to
do carrying service for the lord, he has to do carrying service
(avera) for the sheriff also or in lieu thereof to pay a small sum
of money 1 . And another aspect of this word consuetudo is
interesting to us. Land that is burdened with customs is
customary land (terra consuetudinaria) 2 . As yet this term
does not imply that the tenure, though protected by custom, is
not protected by law ; there is no opposition between law and
custom ; the customary tenant of Domesday Book is the tenant
who renders customs, and the more customs he renders the more
customary he is 3 .
Justiciary This word consuetudo is the widest of words. Perhaps we
C dhies! tU ~ fi n d the best equivalent for consuetudines in our own vague
'dues 4 .' It covers what we should call rents; it covers what we
J D. B. i. 141 : there are four sokemen who are men of ^Ethelmaer and who
can not sell their land without his consent ; but they are under the king's sake
and soke and jointly provide the sheriff with one avera every year or four pence.
2 D. B. i. 249 : ' Haec terra fuit consuetudinaria solummodo de theloneo regis
eed aliam socam habebat.'
3 D. B. ii. 273 b : ' In eadem 8 consuetudinarii ad faldam sui antecessoris.'
Ibid. 215 : ' 8 homines consuetudinaries ad hoc manerium.'
4 D. B. i. 280 : ' Duae partes Regis et tercia comitis de censu et theloneo et
forisfactura et de omni consuetudine.' Ibid. 42 : ' Unam aecclesiam et 6 capellas
cum omni consuetudine vivorum et mortuorum.'
The Sokemen. 79
should call rates and taxes; but further it covers what we
should call the proceeds and profits of justice. Let us construe
a few entries. At Romney there are burgesses who in return
for the service that they do on the sea are quit of all customs
except three, namely, larceny, peace-breach and ambush 1 . In
Berkshire King Edward gave to one of his foresters half a hide
of land free from all custom, except the king's forfeiture, such as
larceny, homicide, ham-fare and peace-breach 2 . In what sense
can a crime be a custom ? In a fiscal sense. A crime is a source
of revenue. In what sense should we wish to have our land free
of crimes, free even, if this be possible, of larceny and homicide ?
In this sense : we should wish that no money whatever should
go out of our land, neither by way of rent, nor by way of tax,
rate, toll, nor yet again by way of forisfactura, of payment for
crime committed. We should wish also that our land with the
tenants on it should be quit or quiet (quieta) from the incursions
of royal and national officers, whether they be in search of taxes
or in search of criminals and the fines due from criminals, and
we should also like to put those fines in our own pockets. Justice
therefore takes its place among the consuetudines : ' larceny ' is a
source of income 3 . A lord who has ' his customs,' is a lord who
has among other sources of revenue, justice or the profits of
justice 3 . ' Justice or the profits of justice,' we say, for our record
does not care to distinguish between them. It is thinking of
money while we are engaged in questioning it about the
constitution and competence of tribunals. It gives us but
crooked answers. However, we must make the best that can
be made of them, and in particular must form some opinion
about the consuetudines known as sake and soke.
1 D. B. i. 10 b: 'et suut quieti pro servitio maris ab oinui consuetudine
preter tribus, latrocinio, pace infracta, et forestel.'
z D. B. i. 61 b : ' solutam ab omni consuetudine propter forestam custodiendam
excepta forisfactura Kegis, sicut est latrocinium, et homicidium, et neinfara, et
fracta pax.'
3 D. B. i. 52 : 'Hi infrascripti habent in Hantone consuetudfines] domorum
suarum.' Ibid. 249: ' Haec terra fuit consuetudinaria solummodo de theloneo
Regis aed socaiu aliam habebat.'
Domesday Book.
5. Sake and sake.
Sake and We may best begin our investigation by recalling the law
of later times. In the thirteenth century seignorial justice, that
is, justice in private hands, has two roots. A certain civil juris-
diction belongs to the lord as such ; if he has tenants enough to
form a court, he is at liberty to hold a court of and for his
tenants. This kind of seignorial justice we call specifically
feudal justice. But very often a lord has other and greater
powers than the feudal principle would give him ; in particular
he has the view of frankpledge and the police justice that the
view of frankpledge implies. All such powers must in theory
have their origin in grants made by the king ; they are fran-
chises. With feudal justice therefore we contrast ' franchisal '
justice 1 .
Private Now if we go back to the Norman period we shall begin to
turn in the doubt whether the feudal principle the principle which as a
matter of course gives the lord justiciary powers over his
tenants is of very ancient origin 2 . The state of things that
then existed should be revealed to us by the Leges Henrici;
for, if that book has any plan at all, it is a treatise on the law
of jurisdiction, a treatise on 'soke.' To this topic the writer
constantly returns after many digressions, and the leading
theme of his work is found in the following sentence : ' As to
the soke of pleas, there is that which belongs properly and
exclusively to the royal fiscus; there is that which it partici-
pates with others ; there is that which belongs to the sheriffs
and royal bailiffs as comprised in their ferms ; there is that
which belongs to the barons who have soke and sake 3 .' But,
when all has been said, the picture that is left on our minds is
that of a confused conflict between inconsistent and indefinite
principles, and very possibly the compiler in giving us such a
picture is fulfilling the duty of a faithful portrayer of facts,
though he does not satisfy our demand for a rational theory.
1 Hist. Eng. Law, i. 558. The terms here used were adopted when the
Introduction to the Selden Society's Select Pleas in Manorial Courts (1888) was
being written. M. Esmein in his Cours d'histoire du droit francais, ed. 2 (1895),
p. 259, has insisted on the same distinction but has used other and perhaps
apter terms. According to him ' la justice rendue par les seigneurs ' (my
seignorial justice) is either 'la justice seigneuriale ' (my franchisal justice) or
'la justice feodale' (my feudal justice).
2 See Liebermann, Leges Edwardi, p. 88. 8 Leg. Hen. 9, 9.
Sake and So/ce 81
On the one hand, it seems plain that there is a seignorial Sokeintiie
justice which is not ' franchisal.' Certain persons have a certain
* soke ' apart from any regalities which may have been expressly
conceded to them by the king. But it is not clear that the
legal basis of this soke is the simple feudal principle stated
above, namely, that jurisdiction springs from the mere fact of
tenure. An element of which we hear little in later days, is
prominent in the Leges, the element of rank or personal status.
' The archbishops, bishops, earls and other ' powers ' (potestates)
have sake and soke, toll, team and infangenethef in their own
lands 1 .' Here the principle seems to be that men of a certain
rank have certain jurisdictional powers, and the vague term
potestates may include in this class all the king's barons. But
then the freeholding vavassores have a certain jurisdiction, they
have the pleas which concern wer and wite (that is to say
' emendable ' pleas) over their own men and their own property,
and sometimes over another man's men who have been arrested
or attached in the act of trespass 2 . Whatever else we may think
of these vavassores, they are not barons and probably they are
not immediate tenants of the king 3 . It is clear, however, that
there may be a ' lord ' with ' men ' who yet has no sake or soke
over them 4 . We are told indeed that every lord may summon
his man to stand to right in his court, and that if the man be
resident in the remotest manor of the honour of which he holds,
he still must go to the plea 5 . Here for a moment we seem to
have a fairly clear announcement of what we call the simple
feudal principle, unadulterated by any element of personal rank ;
still our text supposes that the lord in question is a great man,
he has no mere manor but an honour or several honours. On
the whole, our law seems for the time to be taking the shape
that French law took. If we leave out of sight the definitely
granted franchisal powers, then we may say that a baron or the
holder of a grand fief has ' high justice,' or if that term be too
technical, a higher justice, while the vavassor has 'low justice*
or a lower justice. But in this province, as in other provinces,
of English law personal rank becomes of less and less import-
ance. The rules which would determine it and its consequences
arc never allowed to become definite, and in the end a great
1 Leg. Henr. 20 2. 2 Leg. Henr. 27.
3 Hist. Eng. Law, i. 532. * Leg. Heiir. 57 8. Cf. 59 19.
5 Leg. Henr. 55.
M.
82 Domesday Book.
generalization surmounts all difficulties : every lord has a
certain civil justice over his tenants; whatsoever powers go
beyond this, are franchises.
Kinds of As to the sort of jurisdiction that a lord of our Leges has,
soke in the !
Leges. we can make no statement in general terms, ouch categories
as ' civil ' and ' criminal ' are too modern for use. We must of
course except the pleas of the crown, of which a long and un-
generalized list is set before us 1 . We must except the pleas of
the church. We must except certain pleas which belong in
part to the king and in part to the church 2 . Then we observe
that the justice of an archbishop, bishop or earl, probably the
justice of a baron also, extends as high as infangenetJief, while
that of a vavassor goes no higher than such offences as are
emendable. The whole matter however is complicated by royal
grants. The king may grant away a demesne manor and retain
not only ' the exclusive soke ' (i.e. the soke over the pleas of the
crown), but also ' the common soke ' in his hand 8 , and a great
man may by purchase acquire soke (for example, we may
suppose, the hundredal soke) over lands that are not his own 4 .
Then again, we may suspect that what is said of 'soke' in
general does not apply to any jurisdiction that a lord may
exercise over his servi and villani. As to the servi, very possibly
the lord's right over them is still conceived as proprietary
rather than jurisdictional, while for his villani (serf and villein
are not yet convertible terms) the lord, whatever his rank may
be, will probably hold a ' hallmoot 5 ' and exercise that ' common
soke ' which does not infringe the royal preserves. On the
whole, the law of the thirteenth century seems to evolve itself
somewhat easily out of the law of these Leges, the process of
development being threefold: (1) the lord's rank as bishop,
abbot, earl, baron, becomes unimportant; (2) the element of
tenure becomes all-important; the mere fact that the man
holds land of the lord makes him the lord's justiciable; thus a
generalization becomes possible which permits even so lowly a
person as a burgess of Dunstable to hold a court for his tenants 6 ;
(3) the obsolescence of the old law of wite and wer, the growth
1 Leg. Henr. 10 1.
2 Leg. Henr. 11 1. This explains the ' participatio ' of 9 9.
3 Leg. Henr. 19. 4 Leg. ilenr. 20 2.
8 Leg. Henr. 9 4 ; 20 2; 57 8 ; 78 2.
6 Hist. Eng. Law, i. 574.
Sake and Soke. 83
of the new law of felony, the emergence in Glanvill's book of
the distinction between criminal and civil pleas as a grand
primary distinction, the introduction of the specially royal
processes of presentment and inquest, bring about a new appor-
tionment of the field of justice and a rational demarcation of
feudal from franchisal powers. Still when we see the lords,
especially the prelates of the church, relying upon prescription
for their choicest franchises 1 , we may learn (if such a lesson be
needed) that new theories could not master all the ancient
facts.
Whether the Conqueror or either of his sons would have The Nor-
admitted that any justice could be done in England that was and private
not his justice, we may fairly doubt. They issued numerous ] t | 1 ^ ll
charters which had no other object than that of giving or
confirming to the donees ' their sake and soke,' and, so far as we
can see, there is no jurisdiction, at least none over free men,
that is not accounted to be ' sake and soke.' Occasionally it is
said that the donees are to have ' their court.' However far the
feudalization of justice had gone either in Normandy or in
England before the Conquest, the Conquest itself was likely to
conceal from view the question whether or no all seignorial
jurisdiction is delegated from above; for thenceforward every
lay tenant in chief, as no mere matter of theory, but as a plain
matter of fact, held his land by a title derived newly and
immediately from the king. Thus it would be easy for the
king to maintain that, if the lords exercised jurisdictional powers,
they did so by virtue of his grant, an expressed grant or an
implied grant. Gradually the process of subinfeudation would
make the theoretical question prominent and pressing, for
certainly the Norman nobles conceived that, even if their justice
was delegated to them by the king, no rule of law prevented
them from appointing sub-delegates. If they claimed to give
away land, they claimed also to give away justice, and no
earnest effort can have been made to prevent their doing this 2 .
1 Hist. Eng. Law, i. 571.
2 See e.g. Geoffrey Clinton for Kenilworth, Monast. vi. 221 : ' Concedo...ut
habeant curiam suam...ita libere...sicut ego meam curiam...ex concessu regis
melius et firmius habeo.' Robert of Ouiliy for Osney, ibid. p. 251 : ' Volo...quod
habeant curiam ipsorum liberam de suis hominibus de omnimodis transgres-
sionibus et defaltis, et quieti sint tarn ipsi quam eorum tenentes de ornuimodis
curiae meae sectis.'
62
84 Domesday Book.
Sake and Returning from this brief digression, we must consider sake
Domesday and soke as they are in Domesday Book. For a moment we will
attend to the words themselves 1 . Of the two soke is by far the
commoner; indeed we hardly ever find sake except in connexion
with soke, and when we do, it seems just an equivalent for soke'
We have but an alliterative jingle like 'judgment and justice 2 .'
Apparently it matters little or nothing whether we say of a
lord that he has soke, or that he has sake, or that he has soke
and sake. But not only is soke the commoner, it is also the
wider word; we can not substitute sake for it in all contexts.
Thus, for example, we say that a man renders soke to his lord
or to his lord's manor ; also we say that a piece of land is a soke
of such and such a manor; no similar use is made of sake.
Meaning of Now as a matter of etymology sake seems the easier of the
two words. It is the Anglo-Saxon sacu, the German Sache, a
thing, a matter, and hence a ' matter ' or ' cause ' in the lawyer's
sense of these terms, a ' matter ' in dispute between litigants, a
' cause ' before the court. It is still in use among us, for though
we do not speak of a sake between two persons, we do speak of
a man acting for another's sake, or for God's sake, or for the sake
of money 3 . In Latin therefore sake may be rendered by
placitum : ' Roger has sake over them ' will become ' Rogerius
habet placita super eos 4 '; Roger has the right to hold plea
over them. Thus easily enough sake becomes the right to have
a court and to do justice.
Meaning of As to soke, this has a very similar signification, but the
route by which it attains that signification is somewhat doubt-
ful. We must start with this that soke, socna, soca, is the
Anglo-Saxon socn and has for its primary meaning a seeking.
It may become connected with justice or jurisdiction by one or
by both of two ways. One of these is explained by a passage
1 See Liebermann, Leg. Edw. p. 91.
* Thus in D. B. ii. 409 we find two successive entries, the ' in saca regis et
comitis ' of the one, being to all seeming an equivalent for the ' in soca regis et
comitis ' of the other. D. B. ii. 416 : ' de omnibus habuit antecessor Kannulfi
commeudationem et sacam excepto uno qui est in soca S. Edmundi.' Ibid. ii.
391 b : 'liberi homines Wisgari cum saca. ..liber homo. ..sub Witgaro cum soca.'
In the Inquisitio Eliensis (e.g. Hamilton, p. 109) saca is sometimes used instead
of soca in the common formula ' sed soca remansit abbati.' In D. B. ii. 264 b, a
scribe having written ' sed habet sacam' has afterwards substituted an o for the
a ; we have noted no other instance of such care.
8 Hist. Eng. Law, i. 566. * D. B. i. 14, Ewias.
Sake and Soke. 85
in the Leges Henrici which says that the king has certain
causes or pleas ' in socna i.e. quaestione sua.' The king
has certain pleas within his investigation, or his right to
investigate. A later phrase may help us: the king is
entitled to ' inquire of, hear and determine ' these matters 1 .
But the word might journey along another path which would
lead to much the same end. It means seeking, following,
suing, making suit, sequi, sectam facere. The duty known
as soca faldae is the duty of seeking the lord's fold. Thus
soca may be the duty of seeking or suing at the lord's court
and the correlative right of the lord to keep a court and exact
suit. Without denying that the word has traversed the first of
the two routes, the route by way of ' investigation ' in the face
of the Leges Henrici we can hardly deny this we may confi-
dently assert that it has traversed the second, the route by way
of ' suit.' There are several passages which assure us that soke
is a genus of which fold-soke is a species. Thus : ' Of these
men Peter's predecessor had fold-soke and commendation and
Stigand had the other soke 2 .' In a document which is very
closely connected with the great survey we find what seems
to be a Latin translation of our word. The churches of
Worcester and Evesham were quarrelling about certain lands
at Hamton. Under the eye of the king's commissioners they
came to a compromise, which declared that the fifteen hides
at Hamton belonged to the bishop of Worcester's hundred of
Oswaldslaw and ought to pay the king's geld and perform the
king's services along with the bishop and ought 'to seek the
said hundred for pleading ' : requirere ad placitandum, this is
the main kind of ' seeking ' that soke implies 3 . If we look back
1 Leg. Henr. 20 1. The author of Leg. Edw. Conf., c. 22, also attempts to
connect soke with seeking, but his words are exceedingly obscure : ' Soche est
quod si aliquis quaerit aliquid in terra sua, etiam furtum, sua est iustitia, si
inventum sit an non.' On the whole we take this nonsense to mean that my
right of soke is my right to do justice in case any one seeks (by way of legal
proceedings) anything in my land, even though the accusation that he brings
be one of theft, and even though the stolen goods have not been found on the
thief. Already the word is a prey to the etymologist.
2 D. B. ii. 256.
3 Heming Cart. i. 75-6 : 'quod illae 15 hidae iuste pertinent ad Osuualdeslaue
hundredum episcopi et debent cum ipso episcopo ceusum regis solvere et omnia
aha servitia ad regem pertinentia et inde idem requirere ad placitandum.'
Another account of the same transaction, ibid. 77, says 'et [episcopus] deracio-
cinavit socani et sacam de Hamtona ad suum hundred Osuualdeslauue quod ibi
86 Domesday Book.
far enough in the Anglo-Saxon dooms, there is indeed much to
make us think that the act of seeking a lord and placing oneself
under his protection, and the consequences of that act, the
relation between man and lord, the fealty promised by the one,
the warranty due from the other, have been known as s6cn l .
If so, then there may have been a time when commendation
and soke were all one. But this time must be already ancient,
for although we do not know what English word was represented
by commendatio, still there is no distinction more emphatically
drawn by Domesday Book than that between commendatio and
soca.
Soke as Now when we meet with soca in the Leges Honrici we
jurisdic- .
tion. naturally construe it by some such terms as 'jurisdiction,'
'justice,' 'the right to hold a court.' We have seen that the
author of that treatise renders it by the Latin quaestio. We
also meet the following phrases which seem clear enough :
' Every cause shall be determined in the hundred, or in the
county, or in the hallmoot of those who have soke, or in the
courts of the lords 2 '; ' ...according to the soke of pleas, which
some have in their own land over their own men, some over
their own men and strangers, either in all causes or in some
causes 3 ' :...'grithbrice or hamsdcn or any of those matters which
exceed their soke and sake 4 ' : ' in capital causes the soke is the
king's 5 .' So again our author explains that though a baron has
soke this will not give him a right to justice over himself; no
one, he says, can have his own forfeiture ; no one has a soke of
impunity: 'nullus enim socnam habet impune peccandi 6 .'
The use that Domesday Book makes of the word may not
be quite so clear. Sometimes we are inclined to render it by
suit, in particular when fold-soke is contrasted with ' other soke.'
But very generally we must construe it by justice or by justiciary
debent placitare et geldum et expeditionem et cetera legis servitia de illis 15 hidis
seoum debent persolvere.'
1 Schmid, Glossar. a. v. s6cen. The word, it would seem, first makes its
way into the vocabulary of the law as describing the act of seeking a sanctuary
and the protection that a criminal gains by that act. A forged charter of Edgar
for Thorney Abbey, Red Book of Thorney, Camb. Univ. Lib., f. 4, says that the
word is a Danish word ' Begi vero pro consensti et eiusdem mercimonii licentia
ac pro reatus emendatione quam Dani scene usitato nominant vocabulo, centum
dedit splendidissimi auri mancusas.'
2 Leg. Henr. 9 4. 3 Ibid. * Ibid. 22.
8 Ibid. 20 b. Ibid. 24.
Sake and Soke. 87
rights, though we must be careful not to introduce the seignorial
court where it does not exist, and to remember that a lord may
be entitled to receive the wites or fines incurred by his criminous
men without holding a court for them. Those men may be tried
and condemned in a hundred court, but the wite will be paid
to their lord. Then the word is applied to tracts of land. A
tract over which a lord has justiciary power, or a wite-exacting
power, is his soke, and very often his soke is contrasted with
those other lands over which he has rights of a more definitely
proprietary kind. But we must turn from words to law.
Already before the Conquest there was plenty of seignorial Seignorial
justice in England. The greatest of the Anglo-Saxon lords had fore the
enjoyed wide and high justiciary rights. Naturally it is of on<lues
the rights of the churches that we hear most, for the rights that
they had under King Edward they still claim under King
William. Foremost among them we may notice the church
of Canterbury. On the great day at Penenden Heath, Lan-
franc proved that throughout the lands of his church in Kent
the king had but three rights; all other justice was in the hands
of the archbishop 1 . In Warwickshire the Archbishop of York
has soke and sake, toll and team, church-scot and all other
' forfeitures ' save those four which the king has throughout the
whole realm 2 . These four forfeitures are probably the four
reserved pleas of the crown that are mentioned in the laws
of Cnut mundbryce, hdmsdcn, forsteal and fyrdwite 3 . But
even these rights though usually reserved to the king may
have been made over to the lord. In Yorkshire neither king
nor earl has any ' custom ' within the lands of S fc . Peter of York,
S fc . John of Beverley, S l . Wilfrid of Ripon, S fc . Cuthbert of
Durham and the Holy Trinity. We are asked specially to
note that in this region there are four royal highways, three
by land and one by water where the king claims all forfeitures
even when they run through the land of the archbishop or of
the earl 4 . Within his immense manor of Taunton the Bishop
1 Selden's Eadmer, p. 197 ; Bigelow, Placita Anglo-Norman, p. 7.
2 D. B. i. 238 b, Alvestone.
3 Cnut, n. 12. We may construe these terms by breach of the king's special
peace, attacks on houses, ambush, neglect of the summons to the host. In
Hereford, D. B. i. 179, the king is accounted to have three pleas, breach of his
peace, hamfare, which is the same as hamsocn, and forsteal ; and besides this
he receives the penalty from a man who makes default in military service.
4 D. B. i. 298 b.
88 Domesday Book.
of Winchester has pleas of the highest class, and three times a
year without any summons his men must meet to hold them 1 .
In Worcestershire seven of the twelve hundreds into which
the county is divided are in the heads of four great churches ;
Worcester has three, Westminster two, Evesham one, Pershore
one. Westminster holds its lands as freely as the king held
them in his demesne ; Pershore enjoys all the pleas of the free
men; no sheriff can claim anything within the territory of
S 1 . Mary of Worcester, neither in any plea, nor in any other
matter 2 . In East Anglia we frequently hear of the reserved
pleas of the crown. In this Danish district they are accounted
to be six in number; probably they are griKbrice, hdmsocn,
fihtwite and fyrdwite, outlaw's-work and the receipt of outlaws 3 .
Often we read how over the men of some lord the king and the
earl have 'the six forfeitures/ or how 'the soke of the six
forfeitures' lies in some royal manor 4 . But then there is
a large tract in which these six forfeitures belong to S fc .
Edmund ; some other lord may have sake and soke in a
given parcel of that tract, but the six forfeitures belong to
S fc . Edmund; they are indeed 'the six forfeitures of S fc . Edmund 5 .'
Other arrangements were possible. We hear of men over whom
S fc . Benet had three forfeitures 6 . The lawmen of Stamford had
1 D. B. i. 87 b : 'Istae consuetudines pertinent ad Tantone, burgheristh,
latrones, pacis infractio, hainfare, denarii de hundret, et denarii S. Petri ; ter in
anno teneri placita episcopi sine ammonitione ; profectio in exercitum cum
hominibus episcopi.' See also the English document, Kemble, Cod. Dipl. iv.
p. 233. The odd word burgheristh looks like a corrupt form of burhgrift (the
peace of the burh), or of burhgerihta (burh-rights, borough-dues), which word
occurs in the English document.
2 D. B. i. 172, 175.
3 Cnut ii. 12, 13, 14. Perhaps when in other parts of England the pleas
of the crown are reckoned to be but four, it is treated as self-evident that the
outlaw falls into the king's hand, as also the man who harbours an outlaw. If
Jihtwite is the right word, we must suppose with Schmid (p. 586) that a fihtwite
was only paid when there was homicide. A fine for mere fighting or drawing
blood would not have been a reserved plea.
4 D. B. ii. 179 b : ' Et iste Withri habebat sacham et socam super istam
terram et rex et comes 6 forisfacturas. ' Ibid. 223 : 'In Cheiunchala soca de
6 forisfacturis.'
8 D. B. ii. 413 b : ' socam et sacam praeter 6 forisfacturas S. Eadmundi.'
Ibid. 373 : ' S. Eadmundus 6 forisfacturas.' Ibid. 384 b : 'Tota hec terra iacebat
in dominio Abbatiae [de Eli] T. B. E. cum omni cousuetudine praeter sex foris-
facturas S. Eadmundi.'
6 D. B. ii. 244 : 'sex liberi homines... ex his habet S. Benedictus socam et de
nno commendationem et de 24 tres forisfacturas.'
Sake and Soke.. 89
sake and soke within their houses and over their men, save geld,
heriot, larceny and forfeitures exceeding 40 ores of silver 1 .
Certain burgesses of Romney serve the king on the sea, and
therefore they have their own forfeitures, save larceny, peace-
breach and forsteal, and these belong, not to the king, but to
the archbishop 2 . Sometimes King William will be careful to
limit his confirmation of a lord's sake and soke to the ' emendable
forfeitures,' the offences which can be paid for with money 3 .
That in the Confessor's day justiciary rights could onlysokeasa
be claimed by virtue of royal grants, that they did not arise rega i y '
out of the mere relation between lord and man, lord and tenant,
or lord and villein, seems to us fairly certain. In the first
place, as already said, soke is frequently contrasted with com-
mendation. In the second place, as we turn over the pages
of our record, we shall see it remarked of some man, who held
a manor in the days before the Conquest, that he had it with
sake and soke, and the remark is made in such a context that
thereby he is singled out from among his fellows 4 . Thus it
is said of a little group of villeins and sokemen in Essex
that ' their lord had sake and soke 5 .' Not that we can argue
that a lord has no soke unless it is expressly ascribed to him.
The surveyors have no great interest in this matter. Some-
times such a phrase as ' he held it freely ' seems to serve as
an equivalent for ' he held it with sake and soke 6 .' It is
said of the Countess Judith, a lady of exalted rank, that she
had a manse in Lincoln without sake and soke 7 . Then we
are told that throughout the city of Canterbury the king
had sake and soke except in the lands of the Holy Trinity
(Christ Church), S'. Augustin, Queen Edith, and three other
lords 8 . We have a list of fifteen persons who had sake and
1 D. B. i. 336 b : ' praeter geld et heriete et forisfacturam corporum suornm
de 40 oris argenti et praeter latronem.' Such a phrase as ' geld, heriot and
thief is instructive.
2 D. B. i. 4 b.
3 William I. for Ely, Hamilton, Inquisitio, p.xviii. : ' omnes alias forisfacturas
quae emendabiles surit.'
4 D. B. ii. 195: ' Super hos habuit T, R. E. Episcopus 6 forisfacturas sed
hundret nee vidit breve nee sigillum nee concessum Regis.'
5 D. B. ii. 34 b. 6 g ee e . g . D. B. i. 220.
7 D. B. i. 336 : ' Rogerius de Busli habet unum mansum Sueni filii Suaue
cum saca et soca. Judita comitissa habet unum mansum Stori sine saca et
soca.'
8 D. B. i. 2.
90 Domesday Book.
soke iii the two lathes of Sutton and Aylesford 1 , a list of thirty-
five persons who had sake and soke, toll and team in Lincoln-
shire (it includes the queen, a bishop, three abbots and two
earls 2 ), and a list of nineteen persons who had similar rights
in the shires of Derby and Nottingham 3 . Such lists would
have been pointless had any generalization been possible. Then
in East Anglia it is common enough to find that the men who
are reckoned to be the liberi homines of some lord are under
the soke of another lord or render their soke to the king and
the earl, that is to say, to the hundred court. Often enough
it is said somewhat pointedly that the men over whom the
king and the earl have soke are liberi homines, and this may
for a moment suggest that the lord as a matter of course has
soke over such of his men as are not ranked as ' free men ' ;
possibly it may suggest that freedom in this context implies
subjection to a national as opposed to a seignorial tribunal 4 .
But on the one hand a lord often enough has soke over those
who are distinctively 'free men 8 ,' while on the other hand,
as will be explained below, he has not the soke over his
sokeman 6 .
Soke over But we must go further and say that the lord has not
always the soke over his villeins. This is a matter of much
importance. An entry relating to a manor in Suffolk seems
to put it beyond doubt : In the hundred and a half of Sanford
Auti a thegn held Wenham in King Edward's time for a manor
and three carucates of land ; there were then nine villani, four
bordarii and one servus and there were two teams on the de-
mesne; Auti had the soke over his demesne and the soke of
the villeins was in Bercolt 7 . Now Bercolt, the modern Bergholt,
was a royal manor, the seat of a great court, which had soke
over many men in the neighbouring villages. To all seeming
it was the court for the hundred, or 'hundred-and-a-half/ of
i D. B. i. 1 b. a D. B. i. 337. 3 D. B. i. 280 b.
4 D. B. ii. 185 : ' Super omnes liberos istius hundreti [de Northerpingeham]
habet Rex sacam et socam.' Ibid. 188 b : 'Rex et comes de omnibus istis liberis
hominibus socam.' Ibid. 203 : 'Et de omnibus his liberis [Episcopi Osberni]
Boca in hundreto."
8 D. B. ii. 210: ' Super omnes istos liberos homines habuit Rex Eadwardus
Bocam et sacam, et postea Guert accepit per vim, sed Rex Willelmus dedit
[S. Eadmundo] cum manerio socam et sacam de omnibus liberis Guert sicut
ipse tenebat ; hoc reclamant monachi.'
8 Below, p. 105. 7 D. B. ii. 425 b.
Sake and Soke. 91
Sat] ford 1 . Here then we seem to have villeins who are not
under the soke of their lord but are the justiciables of the
hundred court. In another case, also from Suffolk, it is said of
the lord of a manor that he had soke ' only over the demesne
of his hall,' and this seems to exclude from the scope of his
justiciary rights the land held by thirty-two villeins and eight
bordiers 2 . We may find the line drawn at various places.
Not very unfrequently in East Anglia a lord has the soke over
those men who are bound to his sheep-fold, while those who
are 'fold-worthy' attend the hundred court 3 . In one case
a curious and instructive distinction is taken : ' In Farwell
lay in King Edward's day the sake and soke of all who had
less than thirty acres, but of all who had thirty acres the soke
and sake lay in the hundred 4 .' In this case the line seems
to be drawn just below the virgater, no matter the legal class
to which the virgater belongs. To our thinking it is plain
enough that many a manerium of the Confessor's day had no
court of its own. As we shall see hereafter, the manors are
often far too small to allow of our endowing each of them
with a court. When of a Cheshire manor we hear that ' this
manor has its pleas in its lord's hall ' we are being told of
something that is exceptional 5 . In the thirteenth century
no one would have made such a remark. In the eleventh the
halimote or hall-moot looks like a novelty.
Seignorial justice is as yet very closely connected with Private
the general scheme of national justice. Frequently the lord
soke.
1 D. B. ii. 287, 287 b: ' Sanfort Hund. et dim....Supradictum manerium
scilicet Bercolt...cum soca de hundreto et dimidio reddebat T. R. E. 24 lib.' On
subsequent pages it is often said that the soke of certain persons or lands is in
Bergholt.
2 D. B. ii. 408 b : ' Hagala tenuit Gutmundus sub Eege Edwardo pro manerio
8 car[ucatarum] terrae cum soca et saca super dominium hallae tantum. Tune
32 villani...8 bordarii...lO servi. Semper 4 carucae in dominio. Tune et post
24 carucae hominum....Sex sochemanni eiusdem Gutmundi de quibus soca est
in hundreto.'
3 D. B. ii. 216 : ' De Redeham habebat Abbas socam super bos qui sequebantur
faldam, et de aliis soca in hundreto.' Ibid. 129 b : ' Super omnes istos qui
faldam Comitis requirebant habebat Comes socam et sacam, super alios omnea
Rex et Comes.' Ibid. 194 b: 'In Begetuna tenuit Episcopus Almarus per
emptionem T. R. E. cum soca et saca de Comite Algaro de borfdariis] et sequent-
ibus faldam 3 carucatas terrae.' Ibid. 350 b : ' habebat socam et sacam super
hallam et bordarios.'
4 D. B. ii. 130 b.
'" D. B. i. 265 b : 'Hoc manerium habet suurn placitum in aula doim'ni sui. 1
92 Domesday Book.
who has justice has a hundred. We remember how seven
of the twelve hundreds of Worcestershire are in the hands of
four great churches 1 . S fc . Etheldreda of Ely has the soke of
five and a half hundreds in Suffolk 2 . In Essex Swain had
the half-hundred of Clavering, and the pleas thereof brought
him in 25s. a year 3 . In Nottinghamshire the Bishop of
Lincoln had all the customs of the king and the earl throughout
the wapentake of Newark 4 . The monks of Battle Abbey
claimed that the sake and soke of twenty-two hundreds and
a half and all royal ' forfeitures ' were annexed to their manor
of Wye 5 . But further and this deserves attention when the
hundredal jurisdiction was not in the hands of some other
lord, it was conceived as belonging to the king. The sake
and soke of a hundred or of several hundreds is described as
'lying in,' or being annexed to, some royal manor and it
is farmed by the farmer of that manor. Oxfordshire gives
us the best example of this. The soke of four and a half
hundreds belongs to the royal manor of Bensington, that of
two hundreds to Headington, that of two and a half to Kirt-
lington, that of three to Upton, that of three to Shipton, that
of two to Bampton, that of two to Bloxham and Adderbury".
What we see here we may see elsewhere also 7 . If then King
W T illiam gives the royal manor of Wye to his newly founded
church of S fc . Martin in the Place of Battle, the monks will
contend that they have obtained as an appurtenance the
hundredal soke over a large part of the county of Kent 8 .
Hundredal The law seems as yet, if we may so speak, unconscious
Hal soke f * ne f act that underneath or beside the hundredal soke a
new soke is growing up. It seems to treat the soke over a
man or over a piece of land as an indivisible thing that must
' lie ' somewhere and can not be in two places at once. It has
1 Above, p. 88. 2 D. B. ii. 385 b.
8 D. B. ii. 46 b. 4 D. B. i. 283 b.
B D. B. i. 11 b. ; Chron. de Bello (Anglia Christiana Soc.) p. 28 ; Battle
Custumals (Camd. Soc.), p. 126.
6 D. B. i. 154 b.
7 D. B. 39 b, Hants : ' Huic manerio pertinet soca duorum hundredorum.'
Ibid. 64 b, Wilts : ' In hac firrna eraut placita hundretorum de Cicerneutone et
Sutelesberg quae regi pertinebant.' Ibid. ii. 185 : ' Super omnes liberos istius
hundreti habet rex sacam et socam.' Ibid. ii. 113 b : ' Soca et sacba de
Grenehou hundreto pertinet ad Wistune manerium Itegis, quicuuque ibi
teneat, et habent Hex et Conies.'
fi See above, note 5.
Sake and Soke. 93
indeed to admit that while one lord has the soke, the king or
another lord may have certain reserved and exalted ' forfeitures,'
the three forfeitures or the four or the six, as the case may be 1 ;
but it has no classification of courts. The lord's court, if it be
not the court of an ancient hundred, is conceived as the court
of a half-hundred, or of a quarter of a hundred 2 , or as the court
of a district that has been carved out from a hundred 3 . Thus
Stigand had the soke of the half-hundred of Hersham, save
Thorpe which belonged to S fc . Edmund, and Pulham which
belonged to S'. Etheldreda 4 ; thus also the king had the soke
of the half-hundred of Diss, except the land of S'. Edmund,
where he shared the soke with the saint, and except the lands
of Wulfgset and of Stigand 5 . But it is impossible to maintain
this theory. The hundred is becoming full of manors, within
each of which a lord is exercising or endeavouring to exer-
cise a soke over all, or certain classes, of his men. It is
possible that in Lincolnshire we see the beginnings of a differ-
entiating process ; we meet with the word frisoca, frigsoca,
frigesoca. Whether this stands for ' free soken,' or, as seems
more likely, for ' friS soken,' soke in matters relating to the
peace, it seems to mark off one kind of soke from other kinds 8 .
We have to remember that in later days the relation of the
manorial to the hundredal courts is curious. In no accurate
sense can we say that the court of the manor is below the court
of the hundred. No appeal, no complaint of false judgment,
lies from the one to the other ; and yet, unless the manor enjoys
some exceptional privilege, it is not extra-hundredal and its
jurisdiction in personal causes is over-lapped by the jurisdiction
of the hundred court : the two courts arise from different prin-
ciples 7 . In Domesday Book the feudal or tenurial principle
1 Above, p. 88.
2 D. B. ii. 379 : ' Super ferting de Almeham habet W. Episcopus socam et
sacam.'
3 D. B. i. 184: ' Haec terra non pertinet...ad hundredum. De hac terra
habet Rogerius 15 sextarios mellis et 15 porcos quando homines sunt ibi et
placita super eos.'
1 D. B. ii. 139 b. 6 D. B. ii. 114.
8 IX B. i. 340, 346, 357 b, 366, 368 b (ter). See also on f. 344, 344 b, the
symbol f5 in the margin. The word frilSsocn occurs in 2Ethelr. vni. 1 aud
Cnut i. 2 3, where it seems to stand for a sanctuary, an asylum.
7 If one of A's tenants is sued in a personal action in the hundred court he
will have to answer there unless A appears and ' claims his court.' This comes
out plainly in certain rolls of the court of Wisbeach Hundred, which by the kind
94 Domesday Book.
seems still struggling for recognition. Already the Norman
lords are assuming a soke which their antecessores did not
enjoy 1 . As will be seen below, they are enlarging and con-
solidating their manors and thereby rendering a manorial
justice possible and profitable. Whether we ought to hold
that the mere shock and jar of conquest and dispossession
was sufficient to set up the process which covered our land
with small courts, or whether we ought to hold that an element
of foreign law worked the change, is a question that will never
be answered unless the Norman archives have yet many secrets
to tell. The great 'honorial' courts of later days may be
French ; still it is hardly in this region that we should look
for much foreign law. It is in English words that the French
baron of the Conqueror's day must speak when he claims
justiciary rights. But that the process was far from being
complete in 1086 seems evident.
The sei- Many questions about the distribution and the constitution
court* f the courts we must leave unsolved. Not only does our
record tell us nothing of courts in unambiguous words, but
it hardly has a word that will answer to our ' court.' The term
curia is in use, but it seems always to signify a physical object,
the lord's house or the court-yard around it, never an insti-
tution, a tribunal 2 . Almost all that we are told is conveyed
to us under the cover of such words as sake, soke, placita, foris-
facturae. We know that the Bishop of Winchester has a court
at Taunton, for his tenants are bound to come together thrice
permission of the Bishop of Ely, I have examined. On a roll of 33 Edw. I. we find
Stephen Hamond sued for a debt ; ' et super hoc venit Prior Elyensis et petit
curiam suam ; et Thomas Doreward petit curiam suam de dicto Stephano residente
suo et tenente suo.' The prior's petition is refused on the ground that Stephen is
not his tenant, and Doreward's petition is refused on the ground that it is
unprecedented.
1 D. B. ii. 291 : ' Et fuit in soca Regis. Postquam Briennus habuit, nullam
consuetudinem reddidit in hundreto.' Ibid. 240 : ' Hoc totum tenuit Lisius pro
nno manerio ; modo tenet Eudo successor illius et in T. R. E. soca et saca fuit in
hundreto ; set modo tenet Eudo.' Ibid. 240 b : ' Soca istius terre T. R. E. iacuit
in Folsa Regis ; modo habet Walterius [Giffardus].' Ibid. 285 b : the
hundred testified that in truth the King and Earl had the soke and sake in the
Confessor's day, but the men of the vill say that Burchard likewise (similiter)
had the soke of his free men as well as of his villeins.
2 D. B. i. 35 b : ' Duo fratres tenuerunt T. R. E. ; unusquisque habuit domum
suam et tamen manseruut in una curia.' Ibid. 103 b : ' Ibi molendinum servieus
curiae. ' Ibid. 1G3 : 'arabant et herciabant ad curiam domini.'
Sake and SoJce. 95
a year to hold his pleas without being summoned 1 . This
phrase ' to hold his pleas ' seems to tell us distinctly enough
that the suitors are the doomsmen of the court. Then, again,
we have the well-known story of what happened at Orwell
in Cambridgeshire. In that village Count Roger had a small
estate; he had land for a team and a half. This land had
belonged to six sokemen. He had borrowed three of them
from Picot the sheriff in order that they might hold his pleas,
and having got them he refused to return them 2 . That the
court that he wished to hold was a court merely for his land
at Orwell is highly improbable, but he had other lands scattered
about in the various villages of the Wetherly hundred, though
in all his tenants amounted to but 14 villeins, 42 bordiers,
15 cottiers, and 4 serfs. We can not draw the inference that
men of the class known as sokemen were necessary for the
constitution of a court, for at the date of the survey there was
no sokeman left in all Roger's land in Cambridgeshire; the
three that he borrowed from Picot had disappeared or were
reckoned as villeins or worse. Still he held a court and that
court had doomsmen. But we can not argue that every lord
who had soke, or sake and soke, had a court of his own. It
may be that in some cases he was satisfied with claiming the
' forfeitures ' which his men incurred in the hundred courts.
This is suggested to us by what we read of the earl's third penny.
In the county court and in every hundred court that has Soke and
not passed into private hands, the king is entitled to but two-
thirds of the proceeds of justice and the earl gets the other
third, except perhaps in certain exceptional cases in which
the king has the whole profit of some specially royal plea. The
soke in the hundred courts belongs to the king and the earl.
And just as the king's rights as the lord of a hundredal
court become bound up with, and are let to farm with, some
royal manor, so the earl's third penny will be annexed to some
comital manor. Thus the third penny of Dorsetshire was
annexed to Earl Harold's manor of Pireton 3 , and the third
penny of Warwickshire to Earl Edwin's manor of Cote*. Harold
had a manor in Herefordshire to which belonged the third penny
1 D. B. i. 87 b. Kemble, Cod. Dip., iv. p. 233 : ' and J>ii\va secan gemot
on 12 raoniSum.'
2 D. B. i. 193 b ; Hamilton, In^uisitio, 77-8.
3 D. B. i. 75. * D. B. i. 238.
96 Domesday Book.
of three hundreds 1 ; Godwin had a manor in Hampshire to
which belonged the third penny of six hundreds 2 ; the third
penny of three Devonian hundreds belonged to the manor of
Blackpool 3 . Now, at least in some cases, the king could not
by his grants deprive the earl of his right; the grantee of
soke had to take it subject to the earl's third penny. Thus
for the shires of Derby and Nottingham , we have a list of
nineteen persons who were entitled to the king's two-pence,
but only three of them were entitled to the earl's penny 4 .
The monks of Battle declared that throughout many hundreds
in Kent they were entitled to ' the king's two-pence ' ; the earl's
third penny belonged to Odo of Bayeux 5 . And so of certain
' free men ' in Norfolk it is said that ' their soke is in the
hundred for the third penny 6 .' A man commits an offence;
he incurs a ivite; two-thirds of it should go to his lord; one-
third to the earl : in what court should he be tried ? The
answer that Domesday Book suggests by its silence is that
this is a matter of indifference ; it does not care to distinguish
between the right to hold a court and the right to take the
profits of justice. Just once the veil is raised for a moment.
In Suffolk lies the hundred of Blything; its head is the vill
of Blythburgh where there is a royal manor 7 . Within that
hundred lies the considerable town of Dunwich, which Edric
holds as a manor. Now in Dunwich the king Ijas this custom
that two or three men shall go to the hundred court if they
be duly summoned, and if they make default they shall pay a
fine of two ores, and if a thief be caught there he shall be judged
there and corporeal justice shall be done in Blythburgh and
the lord of Dunwich shall have the thief's chattels. Apparently
in this case the lord of Dunwich will see to the trying but
not to the hanging of the thief ; but, at any rate, a rare effort
is here made to define how justice shall be done 8 . The rarity
i D. B. i. 186. 2 D. B. i. 38 b. 3 p. B _ it 10L
4 D. B. i. 280 b : ' Hie notantur qui habuerunt socam et sucam et thol et
thaim et consuetudinem Regis 2 denariorum....Horum omnium nemo habere
potuit terciuni denarium comitis nisi eius concessu et hoc quamdiu viveret,
preter Archiepiscopum et Ulf Ferisc et Godeue Comitissam.'
6 See above, p. 92, note o.
6 D. B. ii. 123 b : ' De istis est soca in hundreto ad tercium denarium.
? D. B. ii. 232.
8 D. B. ii. 312 : ' Hex habet in Duneuuic consuetudinero hanc quod duo vel
tres ibunt ad hundret si recte moniti fuerint, et si boo nou faciunt, forisfacti
Sake and SoJce. 97
of such efforts is very significant. Of course Domesday Book
is not a treatise on jurisdiction ; still if there were other terms
in use, we should not be for ever put off with the vague,
undifferentiated soke. On the whole, we take it that the lord
who enjoyed soke had a right to keep a court if he chose to
do so, arid that generally he did this, though he would be far
from keeping a separate court for each of his little manors ;
but if his possessions were small he may have contented him-
self with attending the hundred court and claiming the fines
incurred by his men. Sometimes a lord seems to have soke
only over his own demesne lands 1 ; in this case the wites that
will come to him will be few. We may in later times see some
curious compromises. If a thief is caught on the land of the
Prior of Canterbury at Brook in Kent, the borhs-elder and
frank-pledges of Brook are to take him to the court of the
hundred of Wye, which belongs to the Abbot of Battle. Then,
if he is not one of the Prior's men, he will be judged by the
hundred. But if he is the Prior's man, then the bailiff of
Brook will ' crave the Prior's court.' The Prior's folk will then
go apart and judge the accused, a few of the hundredors going
with them to act as assessors. If the tribunal thus constituted
cannot agree, then once more the accused will be brought back
into the hundred and will there be judged by the hundredors
in common. In this instance we see that even in Henry II. 's
day the Prior has not thoroughly extricated his court from the
hundred moot 2 .
It seems possible that a further hint as to the history of Soke and
soke is given us by certain entries relating to the boroughs, peace.
It will already have become apparent that if there is soke over
men, there is also soke over land: if men 'render soke' so
also acres 'render soke.' We can see that a very elaborate
web of rules is thus woven. One man strikes another. Before
sunt de 2 oris, et si latro ibi fuerit captus ibi judicabitur, et corporalis iusticia
in Blieburc capietur, et sua pecunia remanebit dominio de Duneuuic.' It seems
to us that the first ibi must refer to Dunwich and therefore that the second does
BO likewise. Still the passage is ambiguous enough.
1 See above, p. 91.
2 Battle Custumals (Camden Soc.) 136. This is an interesting example, for
it suggests an explanation of the common claim to hold a court ' outside ' the
hundred court (petit curiam suam extra hundredum). The claimant's men will
go apart and hold a little court by themselves outside ' the four benches ' of the
hundred.
M. 7
98 Domesday Book.
we can tell what the striker ought to pay and to whom he
ought to pay it, we ought to know who had soke over the
striker, over the stricken, over the spot where the blow was
given, over the spot where the offender was attached or
arrested or accused. 'The men of Southwark testify that
in King Edward's time no one took toll on the strand or in
the water-street save the king, and if any one in the act of
committing an offence was there challenged, he paid the amends
to the king, but if without being challenged he escaped under
a man who had sake and soke, that man had the amends 1 .'
Then we read how at Wallingford certain owners of houses
enjoyed ' the gafol of their houses, and blood, if blood was
shed there and the man was received inside before he was
challenged by the king's reeve, except on Saturday, for then
the king had the forfeiture on account of the market; and
for adultery and larceny they had the forfeiture in their
houses, but the other forfeitures were the king's 2 .'. We can not
hope to recover the intricate rules which governed these affairs,
rules which must have been as intricate as those of our ' private
international law.' But the description of Wallingford tells
us of householders who enjoy the ' forfeitures ' which arise
from crimes committed in their own houses, and a suspicion
may cross our minds that the right to these forfeitures is not
in its origin a purely jurisdictional or justiciary right. However,
these householders are great people (the Bishop of Salisbury,
the Abbot of St Albans are among them), their town houses
are considered as appurtenant to their rural manors and the
soke over the manor comprehends the town house. And so
when we read how the twelve lawmen of Stamford had sake
and soke within their houses and over their own men 'save
geld, and heriot, and corporeal forfeitures to the amount of
40 ores of silver and larceny' we may be reading of rights
which can properly be described as justiciary 3 .
Soke in But a much more difficult case comes before us at Warwick 4 .
We first hear of the town houses that are held by great men
as parts of their manors, and then we hear that ' besides these
1 D. B. i. 32 : ' et si quis forisfaciens ibi calumpniatus fuisset, Eegi emendabat;
si vero non calumpniatus abisset sub eo qui sacara et socam habuisset, ille
emendam de reo haberet.' Compare with this the account of Guildford,
Ibid. 30.
2 D. B. i. 56 b. s D. B> ^ 336 b> 4 D- B< J. 238>
Sake and Soke. 99
houses there are in the borough nineteen burgesses who have
nineteen houses with sake and soke and all customs.' Now
we can not easily believe that the burgess's house is a juris-
dictional area, or that in exacting a mulct from one who
commits a crime in that house the burgess will be playing the
magistrate or exercising a right to do justice or take the
profits of justice by virtue of a grant made to him by the
king. Rather we are likely to see here a relic of the ancient
' house-peace V If you commit an act of violence in a man's
house, whatever you may have to pay to the person whom
you strike and to the king, you will also have to make
amends to the owner of the house, even though he be but
a ceorl or a boor, for you have broken his peace 2 . The right
of the burgess to exact a mulct from one who has shed blood
or committed adultery within his walls may in truth be a
right of this kind, and yet, like other rights to other mulcts,
it is now conceived as an emanation of sake and soke. If
in the eleventh century we hear but little of this householder's
right, may this not be because the householder has surrendered
it to his lord, or the lord has usurped it from the householder,
and thus it has gone to swell the mass of the lord's juris-
dictional rights ? At Broughton in Huntingdonshire the Abbot
of Ramsey has a manor with some sokemen upon it 'and
these sokemen say that they used to have legerwite (fornication-
fine), bloodwite and larceny up to fourpence, and above four-
pence the Abbot had the forfeiture of larceny 3 .' Various
interpretations may be set upon this difficult passage. We
may fashion for ourselves a village court (though there are
but ten sokemen) and suppose that the commune of sokemen
enjoyed the smaller fines incurred by any of its members. But
we are inclined to connect this entry with those relating to
Wallingford and to Warwick and to believe that each sokeman
has enjoyed a right to exact a sum of money for the breach
of his peace. The law does not clearly mark off the right of
the injured housefather from the right of the offended magis-
trate. How could it do so ? If you commit an act of violence
1 The passages from the dooms are collected by Schmid s. v. Hausfriede,
Feohtan.
2 Ine, 6 3 : ' If he fight in the house of a gavel-payer or boor, let him give
30 shillings by way of wite and 6 shillings to the boor.'
3 D. B. i. 204.
72
100
Domesday Book,
Vendible
soke.
Soke and
mund.
you must pay a wite to the king. Why so ? Because you
have wronged the king by breaking his peace and he requires
' amends ' from you. With this thought in our minds we may
now approach an obscure problem.
We have said that seignorial justice is regarded as having
its origin in royal grants, and in the main this seems true. We
hardly state an exception to this rule if we say that grantees
of justice become in their turn grantors. Not merely could
the earl who had soke grant this to one of his thegns, but
that thegn would be said to hold the soke 'under' or ' of the
earl. Justice, we may say, was already being subinfeudated 1 .
But now and again we meet with much more startling state-
ments. Usually if a man over whom his lord has soke ' with-
draws himself with his land,' or ' goes elsewhere with his land,'
the lord's soke over that land ' remains ' : he still has juris-
dictional rights over that land though it is commended to a
new lord. We may be surprised at being very frequently told
that this is the case, for we can hardly imagine a man having
power to take his land out of one sphere of justice and to
put it into another. But that some men, and they not men
of high rank, enjoyed this power seems probable. Of a
Hertfordshire manor we read : ' In this manor there were six
sokemen, men of Archbishop Stigand, and each had one hide,
and they could sell, saving the soke, and one of them could
even sell his soke with the land 2 .' This case may be ex-
ceptional; there may have been a very unusual compact
between the archbishop and this egregiously free sokeman;
but the frequency with which we are told that on a sale the
soke ' remains ' does not favour this supposition.
We seem driven to the conclusion that in some parts of the
country the practice of commendation had been allowed to
1 D. B. ii. 419 b: ' Cercesfort tenuit Scapius teinnus Haroldi Scapius
habuit socam sub Haroldo.' Ibid. 313 : ' Heroldus socam habuit et Stanuuinus
de eo....Tdem Stanuuinus socam habuit de Heroldo.'
2 D. B. i. 142 b : ' et vendere potuerunt praeter socam ; unus autem eorum
etiam socam suam cum terra vendere poterat.' Comp. D. B. ii. 230 : ' Huic
manerio iacent 5 liberi homines ad socam tantum commend[ati] et 2 de omni
consuetudine.' Ibid. ii. 59: 'In Cingeham tenuit Sauinus presbyter 15 acras...
in eadem villa tenuit Etsinus 15 acras. ...Isti supradicti fuerunt liberi ita quod
ipsi posscnt vendere terram cum soca et saca ut hundretus testatur.' Ibid. ii.
40 b : ' et iste fuit ita liber quod posset ire quo vellet cum soca et sacha set
tantum fuit homo Wisgari. 1
Sake and Soke. 101
interfere even with jurisdictional relationships : that there
were men who could 'go with their land to what lord they
chose ' and carry with them not merely their homage, but also
their suit of court and their ' forfeitures.' This may seem to
us intolerable. If it be true, it tells us that the state has been
very weak ; it tells us that the national scheme of justice has
been torn to shreds by free contract, that men have had the
utmost difficulty in distinguishing between property and political
power, between personal relationships and the magistracy to
which land is subject. But unless we are mistaken, the house-
peace in its decay has helped to produce this confusion. In a
certain sense a mere ceorl has had what is now called a sokc,
it used to be called a mund or grift over his house and over
his loaf-eaters: that is to say, he has been entitled to have
money paid to him if his house-peace were broken or his loaf-
eaters beaten. This right he has been able to transfer to a
lord. In one way or another it has now come into the lord's
hand and become mixed up with other rights. In Henry I.'s
day a lawyer will be explaining that if a villein receives money
when blood is shed or fornication is committed in his house, this
is because he has purchased these forfeitures from his lord 1 .
This reverses the order of history.
Such is the best explanation that we can give of the men Soke and
who sell their soke with their land. No doubt we are accusing tk
Domesday Book of being very obscure, of using a single word
to express some three or four different ideas. In some degree
the obscurity may be due to the fact that French justiciars and
French clerks have become the exponents of English law. But
we may gravely doubt whether Englishmen would have produced
a result more intelligible to us. One cause of difficulty we may
perhaps remove. In accordance with common wont we have
from time to time spoken of seignorial jurisdiction. But if the
word jurisdiction be strictly construed, then in all likelihood
there never has been in this country any seignorial jurisdiction.
It is not the part of the lord to declare the law (ius dicere}',
'curia domini debet facere iudicia et non dotninus 2 .' From
1 Leg. Henr. 81 3 : ' Quidara, villani qui sunt, eiusmodi leierwitam et
blodwitam et huiusmodi minora forisfacta emerunt a dominis suis, vel quomodo
meruerunt, de suis et in suos, quorum flet-gefoth vel overseunessa est 30 den. ;
cothseti 15 den.; servi 6 (al. 5) den.' Thejiet-gefoth seems to be the sum due
for fighting in a man's flet or house.
2 Muniinenta Gildhallae, i. 66.
102 Domesday Book.
first to last this seems to be so, unless we take account of
theories that come to us from a time when the lord's court was
fast becoming an obsolete institution 1 . So it is in Domesday
Book. In the hundred court the sheriff presides ; it is he that
appoints a day for the litigation, but the men of the hundred,
the men who come together ' to give and receive right,' make
the judgments 2 . The tenants of the Bishop of Winchester 'hold
the bishops' pleas' at Taunton; Earl Roger borrows sokemen
' to hold his pleas V Thus the erection of a new court is no
very revolutionary proceeding; it passes unnoticed. If once it
be granted that all the justiciary profits arising from a certain
group of men or tract of land are to go to a certain lord, it is
very much a matter of indifference to kings and sheriffs whether
the lord holds a court of his own or exacts this money in the
hundred court. Indeed, a sheriff may be inclined to say 'I am
not going to do your justice for nothing; do it yourself.' So
long as every lord will come to the hundred court himself or
send his steward, the sheriff will have no lack of capable dooms-
men. Then the men of the lord's precinct may well wish for a
court at their doors; they will be spared the long journey to the
hundred court ; they will settle their own affairs and be a law
unto themselves. Thus we ought not to say that the lax use
of the word soke covers a confusion between 'jurisdiction' and
the profits of 'jurisdiction,' and if we say that the confusion is
between justice and the profits of justice, we are pointing to a
distinction which the men of the Confessor's time might regard
as somewhat shadowy. In any case their lord is to have their
wites ; in any case they will get the judgment of their peers ;
what is left to dispute about is mere geography, the number of
the courts, the demarcation of justiciary areas. We may say, if
we will, that far-sighted men would not have argued in this
manner, for seignorial justice was a force mighty for good and
1 Hist. Eng. Law, i. 580-2.
2 D. B. ii. 424 : 'Et dicunt etiam quod istam terram Kfanulfus] calumpniavit
eupra Eadulfum, et vicecomes Rogerius denominavit illis constitutum tempus
m[odo] ut ambo adfuissent; Ranulfo adveniente defuit Badulfus et iccirco diiudi-
caverunt homines hundreti Eannulfum esse saisitum. 1 Ibid. i. 165 b: 'Modo
iacet in Bernitone hundredo iudicio hominum eiusdem hundred!.' Ibid. i. 58 b :
4 unde iudicium non dixerunt, sed ante Regem ut iudicet dimiserunt.' Ibid.
182 b: 'In isto hundredo ad placita conveniunt qui ibi manent ut rectum
faciant et accipiant.'
3 Above, p. 95.
Sake and Soke. 103
for ill ; but it has not been proved to our satisfaction that the
men. who ruled England in the age before the Conquest were
far-sighted. Their work ended in a stupendous failure.
To the sake and soke of the old English law we shall have Soke and
. comraenda-
to return once more in our next essay. Our discussion or the tion.
sake and soke of Domesday Book was induced by a considera-
tion of the various bonds which may bind a man to a lord.
And now we ought to understand that in the eastern counties
it is extremely common for a man to be bound to one lord by
commendation and to another lord by soke. Very often indeed
a man is commended to one lord, while the soke over him and
over his land ' lies in ' some hundred court which belongs to
another lord or is still in the hands of the king and the earl.
How to draw with any exactness the line between the rights
given to the one lord by the commendation and to the other
lord by the soke we can not tell. For instance, we find many
men who can not sell their land without the consent of a lord.
This we may usually regard as the result of some term in the
bargain of commendation; but in some cases it may well be the
outcome of soke. Thus at Sturston in Norfolk we see a free
man of St Etheldreda of Ely ; his sake and soke belong to
Archbishop Stigand's manor of Earsham (Sturston and Earsham
lie some five miles apart); now this man if he wishes to give or
sell his land must obtain the licence both of St Etheldreda and
of Stigand 1 . And so as regards the forfeiture of land. We are
perhaps accustomed to think of the escheat propter delictum
tenentis as having its origin in the ideas of homage and tenure
rather than in the justiciary rights of the lord. Howbeit there
is much to make us think that the right to take the land
of one who has forfeited that land by crime was closely con-
nected with the right to other wites or forisfacturae. ' Of all
the thegns who hold land in the Well wapentake of Lincolnshire,
St Mary of Lincoln had two-thirds of every forisfactura and
the earl the other third ; and so of their heriots ; and so if they
forfeited their land, two-thirds went to St Mary and the re-
mainder to the earl 2 .' St Mary has not enfeoffed these thegns ;
but by some royal grant she has two-thirds of the soke over
1 D. B. ii. 186 : ' In Sterestuna tenuit 1 liber homo S. Aldrede T. R. E. et
Stigandi erat soca et saco in Hersam, set nee dare nee vendere poterat terram
suam sine licentia S. Aldrede et Stigandi.'
2 D. B. ii. 376.
104 Domesday Book.
them. In Suffolk one Brungar held a small manor with soke.
He was a ' free man ' commended to Robert Wimarc's son ; but
the sake and soke over him belonged to St Edmund. Un-
fortunately for Brungar, stolen horses were found in his house,
and we fear that he came to a bad end. At any rate he drops
out of the story. Then St Edmund's Abbot, who had the sake
and soke, and Robert, who had the commendation, went to law,
and right gladly would we have heard the plea ; but they came
to some compromise and to all seeming Robert got the land 1 .
If we are puzzled by this labyrinthine web of legal relationships,
we may console ourselves with the reflection that the Normans
also were puzzled by it. They seem to have felt the necessity
of attributing the lordship of land to one lord and one only
(though of course that lord might have another lord above him),
of consolidating soke with commendation, homage with justice,
and in the end they brought out a simple and symmetrical
result, albeit to the last the relation of seignorial to hundredal
justice is not to be explained by any elegant theory of feudalism.
Sokemen Yet another problem shall be stated, though we have little
hope of solving it. The writ, or rather one of the writs, which
defined the scope of the survey seems to have spoken of liberi
homines and sochemanni as of two classes of men that were
to be distinguished from each other. In Essex, Suffolk and
Norfolk this distinction is often drawn. In one and the same
manor we shall find both 'free men' and sokemen 2 ; we may
even hear of sokemen who formerly were ' free men 3 .' But
the import of this distinction evades us. Sometimes it is said
of sokemen that they ' hold freely 4 .' We read that four soke-
men held this land of whom three were free, while the fourth
had one hide but could not give or sell it 5 . This may suggest
1 D. B. ii. 401 b: 'Eodem tempore fueruut furati equi invent! in domo istius
Brungari, ita quod Abbas cuius fuit soca et saca et Bodbertus qui habuit com-
mendationem super istum venerunt de hoc furto ad placitum, et sicut hundret
testatur discesserunt amicabiliter sine iudicio quod vidissed (sic) hundret.'
2 E.g. D. B. ii. 35 b: 'quas tenuerunt 2 sochemanni et 1 liber homo.'
3 D. B. ii. 28 b: ' Huic manerio iacent 5 sochemanni quorum 2 occupavit
Ingelricus tempore Regis Willelmi qui tune erant liberi homines.'
4 D. B. ii. 83: '3 sochemanni tenentes libere.' Ibid. 88 b : 'tune fuit
1 sochemannus qui libere tenuit 1 virgatam.' Ibid. 58: 'hi hac terra sunt
13 sochemanni qui libere tenent.'
6 D. B. i. 212 b, Bedf. : 'Hanc terram tenuerunt 4 sochemanni quorum 3
liberi fuerunt, quartus vero unam hidam habuit, sed nee dare neo vendere
potuit.'
Sake and Soke. 105
that the principle of the division is to be found in the power
to alienate the land, to 'withdraw' with the land to another
lord 1 . There may be truth in the suggestion, but we can not
square it with all our cases 2 . Often enough the ' free man '
can not sell without the consent of his lord 3 . We have just
met with a 'free man' who had to obtain the consent both
of the lord of his commendation and of the lord of his soke 4 .
On the other hand, the sokeman who can sell without his lord's
leave is no rare being 5 , and it was of a sokeman that we read
how he could sell, not only his land, but also his soke 6 .
Again, we dare not say that while the ' free man ' is the Difference
justiciable of a national court, the soke over the sokeman 'freemen 1
belongs to his lord. Neither side of this proposition is true.
Very often the soke over the 'free man' belongs to a church
or to some other lord 7 , who may or may not be his lord by
commendation 8 . Very often the lord has not the soke over his
sokemen. This may seem a paradox, but it is true. We make
it clearer by saying that you may have a man who is your man
and who is a sokeman, but yet you have no soke over him ; his
soke 'lies' or 'is rendered' elsewhere. This is a common enough
phenomenon, but it is apt to escape attention. When we are
told that a certain English lord had a sokeman at a certain
place, we must not jump to the conclusion that he had soke
over that man of his. Thus in Hertfordshire ^Ethelmaer held
1 D. B. i. 35 b, ' Isti liberi homines ita liberi fuerunt quod poterant ire quo
volebant.' Ibid. ii. 187: '5 homines. ..ex istis erant 4 liberi ut non possent
recedere nisi dando 2 solidos.'
2 Bound, Feudal England, 34.
3 D. B. ii. 59 b, Essex: quod tenuerunt 2 liberi homines. ..set non poterant
recedere sine licentia illius Algari.' Ibid. 216 b, Norf. : 'Ibi sunt 5 liberi
homines S. Benedicti commendatione tantum...et ita est in monasterio quod neo
vendere nee forisfacere potfuerunt] extra ecclesia set soca est in hundredo.'
Ibid. i. 137 b, Herts: 'duo teigni... vendere non potuerunt.' Ibid. i. 30 b, Hants:
'Duo liberi homines tenueruut de episcopo T. B. E. sed recedere cum terra non
potuerunt.'
4 Above, p. 103, note 1.
5 E.g. D. B. i. 129 b: 'In hac terra fuerunt 5 sochemanni de 6 hidis quaa
potuerunt dare vel vendere sine licentia dominorum suorum.'
6 Above, p. 100, note 2.
7 E.g. D. B. ii. 358 : ' 7 liberos homines... hi poterant dare vel vendere terrain
set saca et soca et commendatio et servitium remanebant Sancto [Edmundo]. 1
8 D. B. ii. 186: 'In Sterestuna tenuit unus liber homo S. Aldredae T. B. E.
et Stigandi erat soca et saco in Hersam.' Ibid. 139 b: 'habuit socam et
sacam...de commendatis suis.'
106 Domesday Booh
a manor and in it there were four sokemen ; they were, we
are told, his homines : but over two of them the king had
sake and soke 1 . Unless we are greatly mistaken, the soke of
many of the East Anglian sokemen, no matter whose men they
were, lay in the hundred courts. This prevents our saying
that a sokeman is one over whom his lord has soke, or one who
renders soke to his lord. We may doubt whether the line
between the sokemen and the 'free men' is drawn in accordance
with any one principle. Not only is freedom a matter of degree,
but freedom is measured along several different scales. At
one time it is to the power of alienation or ' withdrawal ' that
attention is attracted, at another to the number or the kind
of the services and 'customs' that the man must render to
his lord. When we see that in Lincolnshire there is no class of
'free men' but that there are some eleven thousand sokemen, we
shall probably be persuaded that the distinction drawn in East
Anglia was of no very great importance to the surveyors or
the king. It may have been a matter of pure personal rank.
These liberi homines may have enjoyed a wergild of more than
200 shillings, for in the Norman age we see traces of a usage
which will not allow that any one is ' free ' if he is not noble 2 .
But perhaps when the Domesday of East Anglia has been fully
explored, hundred by hundred and vill by vill, we shall come
to the conclusion that the 'free men' of one district would have
been called sokemen in another district 3 .
Holdings Some of these sokemen and 'free men' had very small
of the
sokemen. tenements. Let us look at a list of tenants in Norfolk. ' In
Carleton were 2 free men with 7 acres. In Kicklington were
2 free men with 2 acres. In Forncett 1 free man with 2 acres.
In Tanaton 4 free men with 4 acres. In Wacton 2 free men
with 1 acres. In Stratton 1 free man with 4 acres. In
Moulton 3 free men with 5 acres. In Tibenham 2 free men with
7 acres. In Aslacton 1 free man with 1 acre 4 .' These eighteen
free men had but sixteen oxen among them. We think it
1 D. B. i. 141.
2 Liebermann, Leges Edwardi, p. 72. The most important passage is Leg.
Edw. 12 4: 'Manbote in Danelaga de villano et de socheman 12 oras [ = 20
sol.]: de liberis hominibus 3 marcas [ = 40 sol.].'
3 A study of the Hundred Rolls might prepare us for this result. One jury
will call servi those whom another jury would have called villani. See e.g.
E. H. ii. 688 ff.
D. B. ii. 189 b, 190.
Sake and Soke. 107
highly probable that in the survey of East Anglia one and the
same free man is sometimes mentioned several times ; he holds
a little land under one lord, and a little under another lord;
but in all he holds little. Then again, we see that these small
freemen often have a few bordiers or even a few free men
' below them 1 .' And then we observe that, while some of them
are spoken of as having belonged to the manors of their lords,
others are reported to have had manors of their own.
G. The Manor.
This brings us face to face with a question that we have What is
hitherto evaded. What is a manor? The word manerium
appears on page after page of Domesday Book, but to define
its meaning will task our patience. Perhaps we may have
to say that sometimes the term is loosely used, that it has
now a wider, now a narrower compass, but we can not say
that it is not a technical term. Indeed the one statement
that we can safely make about it is that, at all events in certain
passages and certain contexts, it is a technical term.
We may be led to this opinion by observing that in the ' Manor ' a
description of certain counties Middlesex, Buckingham, Bed- term,
ford, Cambridge, Huntingdon, Derby, Nottingham, Lincoln,
York the symbol M which represents a manor, is often
carried out into the margin, and is sometimes contrasted with
the S which represents a soke and the B which represents
a berewick. This no doubt has been done though it may
not have been very consistently done for the purpose of
guiding the eye of officials who will turn over the pages in
search of manors. But much clearer evidence is forthcoming.
Throughout the survey of Essex it is common to find entries
which take such a form as this : ' Thurkil held it for two
hides and for one manor ' ; ' Brithrnaer held it for five hides
and for one manor'; 'Two free men who were brothers held
it for two hides and for two manors'; 'Three free men held
it for three manors and for four hides and twenty-seven acres 2 /
1 D. B. ii. 318: 'In Suttona tenet idem W. [de Cadomo] de B. Malet 2 liberos
homines commendatos Edrico 61 acr[arum] et sub 1 ex ipsis 5 liberi [sic]
homines.' Ibid. 321 b: ' In Caldecota 6 liberi homines commendati Leuuino de
Bachetuna 74 acr. et 7 liberi homines sub eis commend[ati] de 6 acr. et dim.'
2 D. B. ii. 21, 26, 37 b, 59 b.
108 Domesday Book.
In Sussex again the statement 'X tenuit pro uno manerio 1 '
frequently occurs. Such phrases as ' Four brothers held it
for two manors, Hugh received it for one manor 1 ,' ' These
four manors are now for one manor 3 / ' Then there were two
halls, now it is in one manor *,' ' A certain thegn held four
hides and it was a manor 5 ,' are by no means unusual 6 . A
clerk writes ' Elmer tenuit ' and then is at pains to add
by way of interlineation 'pro manerio 7 .' ' Eight thegns held
this manor, one of them, Alwin, held two hides for a manor;
another, Ulf, two hides for a manor; another, Algar, one hide
and a half for a manor ; Elsi one hide, Turkill one hide, Lodi
one hide, Osulf one hide, Elric a half-hide 8 ' when we read
this we feel sure that the scribe is using his terms carefully
and that he is telling us that the holdings of the five thegns
last mentioned were not manors. And then Hugh de Port
holds Wallop in Hampshire ' for half a manor 9 .' But let us
say at once that at least one rule of law, or of local custom,
demands a definition of a manerium. In the shires of Not-
tingham and Derby a thegn who has more than six manors
pays a relief of 8 to the king, but if he has only six manors
or less, then a relief of 3 marks to the sheriff 10 . It seems clear
therefore that not only did the Norman rulers treat the term
manerium as an accurate term charged with legal meaning,
but they thought that it, or rather some English equivalent
for it, had been in the Confessor's day an accurate term charged
with legal meaning.
The word The term manerium seems to have come in with the
Conqueror 11 , though other derivatives from the Latin verb
manere, in particular mansa, mansio, mansiuncula had been
freely employed by the scribes of the land-books. But these
had as a rule been used as representatives of the English hide,
and just for this reason they were incapable of expressing the
notion that the Normans desired to express by the word
manerium. In its origin that word is but one more name for
i D. B. i. 21. 2 D. B. i. 45.
D. B. i. 6b. 4 D. B. i. 27. 5 D. B. i. 163.
6 So in the Exeter record, D. B. iv. 390: ' Tenuerunt 3 tegni pro 4 mansiou-
ibus, et Robertas habet illas pro 1 mansions. '
7 D. B. i. 169 b. Similar interlineations in i. 98.
8 D. B. i. 148; on f. 149 is a similar case. 9 D. B. i. 45 b.
1 D. B. i. 280 b.
11 In several passages in D. B. the word seems to be manerius.
manerium.
The Manor. 109
a house. Throughout the Exeter Domesday the word mansio
is used instead of the manerium of the Exchequer record, and
even in the Exchequer record we may find these two terms
used interchangeably : ' Three free men belonged to this
manerium ; one of them had half a hide and could withdraw
himself without the licence of the lord of the mansio 1 .' If
we look for the vernacular term that was rendered by manerium,
we are likely to find it in the English heal Though this
is not connected with the Latin aula, still these two words
bearing a similar meaning meet and are fused in the aula,
haula, halla of Domesday Book.
Now this term stands in the first instance for a house and Manor
can be exchanged with curia. You may say that there is
meadow enough for the horses of the curia*, and that there
are three horses in the aula 3 ; you may speak indifferently
of a mill that serves the hall 4 , or of the mill that grinds the
corn of the court 5 . But further, you may say that in Stonham
there are 50 acres of the demesne land of the hall in Greeting,
or that in Thorney there are 24 acres which belong to the
hall in Stonham 6 , or that Roger de Rames has lands which
once were in the hall of St Edmund 7 , or that in the hall of
Grantham there are three carucates of land 8 , or that Guth-
mund's sake and soke extended only over the demesne of his
hall 9 . We feel that to such phrases as these we should do
no great violence were we to substitute 'manor' for 'hall.'
Other phrases serve to bring these two words very closely
together. One and the same page tells us, first, that Hugh
de Port holds as one manor what four brothers held as two
manors, and then, that on another estate there is one hall
though of old there were two halls 10 : these two stories seem to
have the same point. ' Four brothers held this ; there was
only one hall there 11 .' ' Two brothers held it and each had
his hall ; now it is as one manor 12 .' 'In these two lands there
is but one hall 13 .' ' Then there were two halls ; now it is in one
1 D. B. ii. 96b: ' Huic manerio iacebant 3 liberi homines, unus tenuit dim.
hidam et potuit abire sine licentia domiui ipsius mansionis.'
2 D. B. i. 149, Wicombe. 3 D. B. ii. 38 b, Hersam.
4 D. B. i. 174 b, Poiwic. 5 D. B. i. 268, Gretford. 6 D. B. ii. 350 b.
7 D. B. ii. 263: 'sed fuerunt in aula S. Edmundi.' 8 D. B. i. 337 b.
9 D. B. ii. 408 b: ' cum soca et saca super dominium hallae tantum.'
1 D. B. i. 45, Wicheham, Werste. " D. B. i. 20, Waliland.
i 2 D. B. i. 11 b, Acres. 13 D. B. i. 26 b, Eldretune.
110 Domesday Booh
manor 1 .' 'Ten manors; ten thegns, each had his hall 2 .' ' In-
gelric set these men to his hall Ingelric added these men
to his manor 3 .'
Difference We do not contend that manerium and halla are precisely
manor and equivalent. Now and again we shall be told of a manerium
haU - sine halla 4 as of some exceptional phenomenon. The term
manerium has contracted a shade of technical meaning ; it
refers, so we think, to a system of taxation, and thus it is
being differentiated from the term hall. Suppose, for example,
that a hall or manor has meant a house from which taxes are
collected, and that some one removes that house, houses being
very portable things 5 : ' by construction of law,' as we now say,
there still may be a hall or manor on the old site ; or we may
take advantage of the new wealth of words and say that, though
the hall has gone, the manor remains : to do this is neater
than to say that there is a ' constructive ' hall where no hall
can be seen. Then again, manerium is proving itself to be
the more elastic of the two terms. We may indeed speak
of a considerable stretch of land as belonging to or even as
'being in' a certain hall, and this stretch may include not
only land that the owner of the hall occupies and cultivates
by himself or his servants, but also land and houses that are
occupied by his villeins 6 : still we could hardly talk of the hall
being a league long and a league wide or containing a square
league. Of manerium, however, we may use even such phrases
as those just mentioned 7 . For all this, we can think of no
English word for which manerium can stand, save hall ; tun, it
is clear enough, was translated by villa, not by manerium.
^ now we * urn ^ rom wor ds to look at the things which
those words signify, we shall soon be convinced that to describe
a typical manerium is an impossible feat, for on the one hand
there are enormous maneria and on the other hand there are
1 D. B. i. 27, Percinges. 2 D. B. i. 284 b, 2Ettune.
3 D. B. ii. 29 b, 30 b. D. B. i. 307 b, Burghedurum ; 308, Ternusc.
6 D. B. i. 63 : ' Ipse quoque transportavit hallam et alias domes et pecuniam
in alio manerio.'
6 D. B. i. 338 b : ' Ad huius manerii aulam pertinent Catenai et Usun 4 car.
terrae ad geldum. Terra ad 8 carucas. Ibi in dominio 2 carucae et 20 villani
et 15 sochemanni et 10 bordarii habentes 9 carucas. Ibi 360 acre prati. Ad
etindem manerium iacet hec soca: In Linberge 4 car. terrae etc.'
7 Throughout Yorkshire the phrase is common, ' Totum manerium x. leu.
long, et y. leu. lat.'
TJie Manor. Ill
many holdings called maneria which are so small that we, with
our reminiscences of the law of later days, can hardly bring
ourselves to speak of them as manors. If we look in the world
of sense for the essence of the manerium we shall find nothing
that is common to all maneria save a piece of ground very
large it may be, or very small held (in some sense or another)
by a single person or by a group of co-tenants, for even upon a
house we shall not be able to insist very strictly. After weary
arithmetical labours we might indeed obtain an average manor ;
we might come to the conclusion that the average manor
contained so many hides or acres, possibly that it included
land occupied by so many sokemen, villeins, bordiers, serfs;
but an average is not a type, and the uselessness of such calcu-
lations will soon become apparent.
We may begin by looking at a somewhat large manor. Let A large
it be that of Staines in Middlesex, which is held by St Peter of
Westminster 1 . It is rated at 19 hides but contains land for
24 plough-teams. To the demesne belong 11 hides and there
are 13 teams there. The villeins have 11 teams. There are :
3 villeins with a half-hide apiece.
4 villeins with a hide between them.
8 villeins with a half-virgate apiece.
36 bordiers with 3 hides between them.
1 villein with 1 virgate.
4 bordiers with 40 acres between them.
10 bordiers with 5 acres apiece.
15 cottiers with 4 acres.
8 bordiers with 1 virgate.
3 cottiers with 9 acres.
13 serfs.
46 burgesses paying 40 shillings a year.
There are 6 mills of 64 shillings and one fish-weir of 6s. 8d.
and one weir which renders nothing. There is pasture sufficient
for the cattle of the vill. There is meadow for the 24 teams,
and in addition to this there is meadow worth 20s. a year.
There is wood for 30 pigs ; there are 2 arpents of vineyard. To
this manor belong four berewicks. Altogether it is worth 35
and formerly it was worth 40. This is a handsome manor.
The next manor that is mentioned would be a fairer specimen.
It is Sunbury held by St Peter of Westminster 2 . It is rated at
7 hides and there is land for but 6 teams. To the demesne
1 D. B. i. 128. 2 D. B. i. 128 b.
112 Domesday Book.
belong 4 hides and there is one team there. The villeins have
4 teams. There are :
A priest with a half-virgate.
8 villeins with a virgate apiece.
2 villeins with a virgate.
5 bordiers with a virgate.
5 cottiers.
1 serf.
There is meadow for 6 teams and pasture enough for the
cattle of the vill. Altogether it is worth 6 and has been
worth 7. Within this one county of Middlesex we can see
wide variations. There are manors which are worth 50 and
there are manors which are not worth as many shillings. The
archbishop's grand manor at Harrow has land for 70 teams 1 ;
the Westminster manor of Cowley has land for but one team
and the only tenants upon it are two villeins 2 .
Enormous But far larger variations than these are to be found. Let
Leomin- us look at a few gigantic manors. Leominster in Herefordshire
had been held by Queen Edith together with sixteen members 3 .
The names of these members are given and we may find them
scattered about over a wide tract of Herefordshire. In this
manor with its members there were SO hides. In the demesne
there were 30 teams. There were 8 reeves and 16 beadles and
8 radknights and 238 villeins, 75 bordiers and 82 male and
female serfs. These in all had 230 teams; so that with the
demesne teams there were no less than 260. Further there
were Norman barons paying rents to this manor. Ralph de
Mortemer for example paid 15s. and Hugh de Lacy 6s. 8d. It
is let to farm at a rent of 60 and besides this has to support a
house of nuns ; were it freed from this duty, it might, so thinks
the county, be let at a rent of 120. It is a most interesting
manor, for we see strong traces of a neat symmetrical arrange-
ment: witness the 16 members, 8 reeves, 8 radknights, 16
beadles; very probably it has a Welsh basis 4 . But we have
in this place to note that it is called a manor, and for
certain purposes it is treated as a single whole. For what
purposes ? Well, for one thing, it is let to farm as a single
whole. This, however, is of no very great importance, for land-
lords and farmers may make what bargains they please. But
ID. B. i. 127. 2 D. B. i. 128 b. > D. B. i. 180.
4 Compare the cases in Seebohm, Village Community, 267.
The Manor. 113
also it is taxed as a single whole. It is rated at the nice round
figures of 80 hides.
No less handsome and yet more valuable is Berkeley in Berkeley.
Gloucestershire 1 . It brought in a rent of 170 of refined money.
It had eighteen members which were dispersed abroad over so
wide a field that a straight line of thirty miles would hardly join
their uttermost points 2 . ' All the aforesaid members belong to
Berkeley.' There were 29 radknights, 162 villeins, 147 bordiers,
22 coliberts, 161 male and female serfs, besides some unenu-
merated men of the radknights; on the demesne land were
54^ teams; and the tenants had 192. Tewkesbury also is Tewkes-
a splendid manor. 'When it was all together in King Edward's
time it was worth 100,' though now but 50 at the most can
be had from it and in the turmoil of the Conquest its value fell
to 12 3 . It was a scattered unit, but still it was a unit for
fiscal purposes. It was reckoned to contain 95 hides, but the
45 which were in demesne were quit of geld, and matters had
been so arranged that all the geld on the remaining 50 hides
had, as between the lord and his various tenants, been thrown
on 35 of those hides. The 'head of the manor' was at Tewkes-
bury ; the members were dispersed abroad ; but ' they gelded in
Tewkesbury 4 .'
No list of great manors would be complete without a notice Taunton.
of Taunton 5 . 'The bishop of Winchester holds Tantoue or has
a mansion called Tantone. Stigand held it in King Edward's
day and it gelded for 54 hides and 2|- virgates. There is land
for 100 teams, and besides this the bishop in his demesne has
land for 20 teams which never gelded.' 'With all its appendages
and customs it is worth 154. 12c?.' 'Tantone' then is valued
as a whole and it has gelded as a whole. But ' Tantone' in this
sense covers far more than the borough which bears that name ;
it covers many places which have names of their own and had
names of their own when the survey was made 6 . We might
speak of the bishop of Exeter's manor of Crediton in Devon
1 D. B. i. 163.
2 If we mistake not, the Osleuuorde of the record is Ashleworth, which,
though some miles to the north of Gloucester, either still is, or but lately was,
a detached piece of the Berkeley hundred.
3 D. B. i. 163.
4 D. B. i. 163 b : 'Hanc terram dedit regina Rogerio de Buslei et geldabat
pro 4 hidis in Tedechesberie.'
6 D. B. i. 87 b; iv. 161. 6 Eyton, Somerset, ii. 34.
M. 8
114 Domesday Book.
which is worth 75 and in which are 264 villeins and 73 bordiers 1 ,
or of the bishop of Winchester's manor of Chilcombe in Hamp-
shire where there are nine churches 2 ; but we turn to another
part of England.
Large If we wish to see a midland manor with many members we
jrTthe 18 mav 1^ a ^ Rothley in Leicestershire 3 . The vill of Rothley
midlands. i^ se }f j s no t very large and it is separately valued at but 62s.
But ' to this manor belong the following members/ and then we
read of no less than twenty-one members scattered over a large
area and containing 204 sokemen who with 157 villeins and 94
bordiers have 82 teams and who pay in all 31. 8s. Id. Their
rents are thus reckoned as forming a single whole. In Lincoln-
shire Earl Edwin's manor of Kirton had 25 satellites, Earl
Morcar's manor of Caistor 16, the Queen's manor of Horncastle
15*. A Northamptonshire manor of 27 hides lay scattered
about in six hundreds 5 .
Town- It is common enough to see a town-house annexed to a
berewicks rural manor. Sometimes a considerable group of houses or
' naws ' "* tne borough is deemed to 'lie in' or form part of
a manor remote from its walls. Thus, to give but two examples,
twelve houses in London belong to the Bishop of Durham's
manor of Waltham in Essex ; twenty-eight houses in London
to the manor of Barking 6 . Not only these houses but their
occupants are deemed to belong to the manor ; thus 80 burgesses
in Dunwich pertain to one of the Ely manors 7 . The berewick
(bereuita) 6 also frequently meets our eye. Its name seems to
signify primarily a wick, or village, in which barley is grown ;
but, like the barton (bertona) and the grange (grangia) of later
days, it seems often to be a detached portion of a manor which
is in part dependent on, and yet in part independent of, the
main body. Probably at the berewick the lord has some demesne
land and some farm buildings, a barn or the like, and the villeins
of the berewick are but seldom called upon to leave its limits ;
but the lord has no hall there, he does not consume its produce
upon the spot, and yet for some important purposes the berewick
is a part of the manor. The berewick might well be some way
1 D. B. i. 101 b; iv. 107. 2 D. B. i. 41. 3 D. B. i. 230.
4 D. B. i. 338-9. B D. B. i. 220, Tingdene.
6 D. B. ii. 15 b, 17 b. 7 D. B. ii. 385 b.
8 The form bereuita is exceedingly common, but must, we think, be due to a
mistake ; c has been read as t.
TJie Manor. 115
off from the hall ; a manor in Hampshire had three berewicks
on the mainland and two in the Isle of Wight 1 .
Then again in the north and east the manor is often the Manor and
centre of an extensive but very discrete territory known as its
soke. One says that certain lands are ' soke ' or are ' the soke,'
or are 'in the soke ' of such a manor, or that 'their soke belongs'
to such a manor. One contrasts the soke of the manor with the
'inland' and with the berewicks 2 . The soke in this context
seems to be the territory in which the lord's rights are, or have
been, of a justiciary rather than of a proprietary kind 3 . The
manor of the eastern counties is a discrete, a dissipated thing.
Far from lying within a ring fence, it often consists of a small
nucleus of demesne land and villein tenements in one village,
together with many detached parcels in many other villages,
which are held by 'free men' and sokemen. In such a case we
may use the term manerium now in a wider, now in a narrower
sense. In valuing the manor, we hardly know whether to
include or exclude these free men. We say that the manor
'with the free men' is worth so much 4 , or that the manor
' without the free men ' is worth so much 5 , that the manor is
worth 10 and that the free men pay 40 shillings 6 , that
Thurmot had soke over the manor and over three of the
free men while the Abbot of Ely had soke over the other
three 7 .
1 D. B. i. 38 b, Edlinges. Some of the 'wicks' seem to have been dairy
farms. D. B. i. 58 b : ' et wika de 10 pensis caseorum.' On the Glastonbury
estates we find persons called wikarii, each of whom has a wika. Glastonbury
Rentalia, 39: 'Thomas de Wika tenet 5 acras et 50 oves matrices et 12 vaccas...
Philippus de Wika tenet unum ferlingum et 50 oves matrices et 12 vaccas.'
Ibid. 41: 'A. B. tenet unum ferlingum et 50 oves matrices et 12 vaccas pro 1
sol. pro wika.' Ibid. 48 : ' Ricardus de Wika tenet 5 acras et 50 oves matrices
et 12 vaccas. Alanus de Wika eodem modo.' Ibid. p. 51.
2 D. B. i. 350 : ' In Osgotebi et Tauelebi 2 bo[vatae] inland et 1 bofvata] soca
huius manerii.' D. B. i. 338 b: 'Hiboldeston est bereuuita non soca et in
Grangeham sunt 2 car[ucatae] inland et in Springetorp dim. car[ucata] est
inland. Reliqua omnis est soca.'
3 When therefore, as is often the case, we find that the occupants of ' the
soke ' are not sokemen but villeins, this seems to point to a recent depression of
the peasantry.
4 D. B. ii. 330b: 'In illo manerio...sunt 35 liberi homines.... Tune valuerunt
liberi homines 4 libras. Manerium cum liberis hominibus valet modo 2i
libras. '
5 D. B. ii. 358 b : ' Hoc manerium exceptis liberis tune valuit 30 solidos."
6 D. B. ii. 289 b. 7 D. B. ii. 285 b.
82
116 Domesday Book.
manors.
Minute From one extreme we may pass to the other extreme. If
there were huge manors, there were also tiny manors. Let us
begin in the south-west of England. Quite common is the
manor which is said to have land for but one team ; common
also is the manor which is said to have land for but half a
team. This means, as we believe, that the first of these manors
has but some 120 acres of arable, while the second has but GO
acres or thereabouts. ' Domesday measures ' are, it is well
known, the matter of many disputes; therefore we will not
wholly rely upon them, but will look at some of these 'half-
team' manors and observe how much they are worth, how many
tenants and how much stock they have upon them.
(i) A Somersetshire manor 1 . Half the land is in demesne ; half is
held by 7 bordiers. The only plough beasts are 4 oxen on the demesne ;
there are 3 beasts that do not plough, 20 sheep, 7 acres of underwood,
20 acres of pasture. It is worth 12s., formerly it was worth 10s.
(ii) A Somersetshire manor 2 . A quarter of the land is in demesne ;
the rest is held by 2 villeins and 3 bordiers. The men have one team ;
apparently the demesne has no plough-oxen. No other animals are
mentioned. There are 140 acres of wood, 41 acres of moor, 40 acres of
pasture. It is worth 12s. Gd. and has been worth 20s.
(iii) A Somersetshire manor 3 . All the land, save 10 acres, is in
demesne ; 2 bordiers hold the 10 acres. There is a team on the demesne ;
there are 2 beasts that do not plough, 7 pigs, 16 sheep, 4 acres of meadow,
7 of pasture. Value, 6s.
(iv) A Somersetshire manor 4 . The whole of the arable is in demesne ;
the only tenant is a bordier. There are 4 plough-oxen and 11 goats and
7 acres of underwood. Value, 6s.
(v) A Devonshire manor 5 . To all seeming all is in demesne and
there are no tenants. There are 4 plough-beasts, 15 sheep, 5 goats,
4 acres of meadow. Value, 3s.
(vi) A Devonshire manor 6 . Value, 3s. All seems to be in demesne ;
we see no tenants and no stock.
We have been at no great pains to select examples, and yet
smaller manors may be found, manors which provide arable land
for but two oxen. Thus
1 D. B. iv. 397 ; i. 93 b, Ichetoca.
2 D. B. iv. 411 ; i. 94 b, Tocheswilla.
3 D. B. iv. 398 ; i. 93 b, Pilloc.
* D. B. iv. 341 ; i. 96, Sordemanneford.
5 D. B. iv. 355 ; i. 116 b, Labera.
6 D. B. iv. 367 ; i. 112 b, Oplomia.
The Manor. 117
(vii) A Somersetshire manor 1 occupied by one villein. "We read
nothing of any stock. Value, I5d.
(viii) A Somersetshire manor 2 with 3 bordiers on it. Value, 4s.
(ix) A Somersetshire manor 3 with one bordier on it. Value, 30<f.
The lowest value of a manor in this part of the world is, so
far as we have observed, one shilling ; that manor to all appear-
ance was nothing but a piece of pasture land*. Yet each of
these holdings is a mansio, and the Bishop of Winchester's
holding at Taunton is a mansio.
From one side of England we will journey to the other Small
side ; from Devon and Somerset to Essex and Suffolk. We the east,
soon observe that in describing the holdings of the ' free men '
and sokemen of this eastern district as they were in King
Edward's day, our record constantly introduces the term
manerium. A series of entries telling us how ' a free man
held x hides or carucates or acres' will ever and anon be broken
by an entry that tells us how 'a free man held x hides or
carucates or acres for a manor' 5 . We soon give up counting
the cases in which the manor is rated at 60 acres. We begin
counting the cases in which it is rated at 30 acres and find
them numerous; we see manors rated at 24 acres, at 20, at
15, at 12 acres. But this, it may be said, tells us little, for
these manors may be extravagantly underrated 6 . Let us then
look at a few of them.
(i) In Espalle Siric held 30 acres for a manor ; there were always
3 bordiers and one team and 4 acres of meadow ; wood for 60 pigs and
13 beasts. It was then worth 10s. T
(ii) In Torentuna Turchetel a free man held 30 acres for a manor ;
there were always 2 bordiers and one team and a half. It is worth 10s. 8
(iii) In Bonghea Godric a free man held 30 acres for a manor ; there
were 1 bordier and 1 team and 2 acres of meadow. It was then worth 8s. 9
1 D. B. iv. 338 ; i. 95 b, Aisseforda.
2 D. B. iv. 395 ; i. 93, Terra Colgrini.
3 D. B. iv. 394 ; i. 93, Eima.
4 D. B. iv. 338 ; i. 95 b, Aisseforda.
5 As the term manerium is often represented by the mere letter IT or m, we
will refer to some cases in which it is written in full. D. B. ii. 295 b : '40 acra3
pro uno manerio ' ; Ibid. 311 b : 'In eadem villa est 1 liber homo de 40 acris et
tenet pro manerio.'
6 The question whether the acreage stated in the Suffolk survey is real or
rateable can not be briefly debated. We hope to return to it.
7 D. B. ii. 322 b, 323. 8 D. B. ii. 323. 9 D. B. ii. 288.
118 Domesday Book.
(iv) Three free men and their mother held 30 acres for a manor.
There was half a team. Value, 5s. 1
(v) In Rincham a free man held 30 acres for a manor. There were
half a team and one acre of meadow. Value, 5s. 2
(vi) In Wenham ^Elfgar a free man held 24 acres for a manor.
Value, 4s. 3
(vii) In Torp a free man held 20 acres for a manor. One team ;
wood for 5 pigs. Value, 40o?. 4
(viii) In Tudenham ^Elfric the deacon, a free man, held 12 acres for a
manor. One team, 3 bordiers, 2 acres of meadow, 1 rouncey, 2 beasts
that do not plough, 11 pigs, 40 sheep. Value, 3s. 6
We are not speaking of curiosities ; the sixty acre manor was
very common in Essex, the thirty acre manor was no rarity
in Suffolk.
The manor Now it is plain enough that the ' lord ' of such a manor,
peasant's or rather the holder of such a manor, for there was little
iing lordship in the case, was often enough a peasant, a tiller of
the soil. He was under soke and under commendation; com-
mended it may be to one lord, rendering soke to another.
Sometimes he is called a sokeman 6 . But he has a manor.
Sometimes he has a full team, sometimes but half a team.
Sometimes he has a couple of bordiers seated on his land, who
help him in his husbandry. Sometimes there is no trace of
tenants, and his holding is by no means too large to permit
of his cultivating it by his own labour and that of his sons.
No doubt in the west country even before the Conquest these
petty mansiones or maneria were being accumulated in the
hands of the wealthy. The thegn who was the antecessor of
the Norman baron, sometimes held a group, a geographically
discontinuous group, of petty manors as well as some more sub-
stantial and better consolidated estates. But still each little
holding is reckoned a manor, while in the east of England there
is nothing to show that the nameless free men who held the
manors which are said to consist of 60, 40, 30 acres had usually
more than one manor apiece. When therefore we are told that
1 D. B. ii. 309. a D. B. ii. 297 b. 3 D. B. ii. 377.
4 D. B. ii. 333. s D. B. ii. 423.
6 D. B. ii. 316 : ' In Aldeburc tenuit Uluricus sochemannus Edrici T. K. E. 80
acras pro manerio.' Ibid. 353 : ' Nordberiam tenuit Eduinus presbyter soche-
mannus Abbatis 30 acras pro manerio.'
The Manor. 119
already before the Conquest England was full of manors, we
must reply: Yes, but of what manors 1 ?
Now were the differences between various manors a mere Definition
difference in size and in value, a student of law might pass
them by. Our notion of ownership is the same whether it be
applied to the largest and most precious, or to the smallest
and most worthless of things. But in this case we have not
to deal with mere differences in size or value. The examples
that we have given will have proved that few, if any, pro-
positions of legal import will hold good of all maneria. We
must expressly reject some suggestions that the later history
of our law may make to us. 'A manor has a court of its
own': this is plainly untrue. To say nothing of extreme
cases, of the smallest of the manors that we have noticed, we
can not easily believe that a manor with less than ten tenants
has a court of its own, yet the number of such manors is
exceedingly large. 'A manor has freehold tenants ' : this of
course we must deny, unless we hold that the villani are free-
holders. 'A manor has villein or customary tenants': even
this proposition, though true of many cases, we can not accept.
Not only may we find a manor the only tenants upon which
are liberi homines*, but we are compelled to protest that a
manor need not have any tenants at all. 'A manor must
contain demesne land ' : this again we can not believe. In
one case we read that the whole manor is being farmed by
the villeins so that there is nothing in demesne 3 , while in other
cases we are told that there is nothing in demesne and see
1 We have taken our examples of small manors from the east and the south-
west because Little Domesday and the Exeter Domesday give details which are
not to be had elsewhere. But instances may be found in many other parts of
England. Thus in Sussex, i. 24, two free men held as two manors land rated
at a hide and sufficient for one team ; it is now tilled by four villeins. In the
Isle of Wight, D. B. i. 39 b, five free men held as five manors land sufficient for
two teams ; it is now tilled by four villeins. In Gloucestershire, D. B. i. 170, is
a manor worth ten shillings with two serfs upon it ; also a manor rated at one
virgate. In Derbyshire, D. B. i. 274 b, land sufficient for four teams and rated
as four carucates had formed eight manors. In Nottinghamshire, D. B. i. 285 b,
land sufficient for a team and a half and valued at ten shillings had formed five
manors for five thegns, each of whom had his hall.
2 D. B. ii. 380: 'In Thistledona tenet 1 liber homo Ulmarus commendatus
S. Eldrede 60 acras pro manerio et 5 liberi homines sub se.'
3 D. B. i. 127 b: 'Wellesdone tenent canonici S. Pauli....Hoc manerium
teneut villani ad firmam canonicorum. In domiuio nil habetur.'
120 Domesday Book.
no trace of any recent change 1 . Thus, one after another, all
the familiar propositions seem to fail us, and yet we have seen
good reason to believe that manerium has some exact meaning.
It remains that we should hazard an explanation.
Th d tb au r ^ manor ^ s a nouse against which geld is charged. To the
geld. opinion that in some way or another the definition of a manor
is intimately connected with the great tax we shall be brought
by phrases such as the following : ' Richard holds Fivehide of
the Earl which Brihtmar held in King Edward's time for forty
acres and for a manor 2 .' ' Two free men who were brothers,
Bondi and ^Elfric held it for two hides and for two manors 3 .'
When we say that a man holds land ' as ' or ' for ' (pro) forty
acres, we mean that his holding, be its real size what it may,
is rated to the geld at forty acres. If we add the words ' and
as (or for) one manor,' surely we are still speaking of the geld.
For one moment the thought may cross our minds that, besides
a tax on land, there has been an additional tax on ' halls,' on
houses of a certain size or value ; but this we soon dismiss as
most unlikely. To raise but one out of many objections : had
there been such a house-tax, it would have left plain traces of
itself in those 'Geld Inquests ' of the south-western counties that
have come down to us. Rather we regard the matter thus :
The geld is a land-tax, a tax of so much per hide or carucate.
In all likelihood it has been assessed according to a method
which we might call the method of subpartitioned provincial
quotas. The assumption has been made that a shire or other
large district contains a certain number of hides ; this number
has then been apportioned among the hundreds of that shire,
and the number allotted to each hundred has been apportioned
among the vills of that hundred. The common result is that
some neat number of hides, five, ten or the like is attributed
1 D. B. i. 235 b : Billesdone, ' In dominio nil fuit nee est.' Ibid. 166 b, Glouc. :
'Isdem Willelmus fde Ow] tenet Alvredestone. Bondi tenuit T. B. E. Ibi
3 hidae geldantes. Nil ibi est in dominio, sed 5 villani et 3 bordarii habent
3 carucas.'...' Isdem Willelmus tenet Odelavestone. Brictri filius Algari tenuit.
Ibi nil in dominio nisi 5 villani cum 5 carucis.' D. B. iv. 396: 'Rogerius habet
1 mansionem quae vocatur P....et reddit gildum pro dimidia virgata ; hanc
potest arare 1 carruca. Hanc tenet Anschetillus de Eogerio. Ibi habet Ansche-
tillus 4 bordarios qui tenent totam illam terram et habent ibi 1 carrucam et
1 agrum prati, et reddit 10 solidos.'
8 D. B. ii. 31. :< D. B. ii. 59 b.
TJie Manor. 121
to the vill 1 . This again has been divided between the holdings
in that vill. Ultimately it is settled that for fiscal purposes
a given holding contains, or must be deemed to contain, this
or that number of hides, virgates, or acres. Thus far the
system makes no use of the manerium. But it now has to
discover some house against which a demand may be made
for every particular penny of geld. Despite the 'realism' of
the system, it has to face the fact that, after all, taxes must be
paid by men and not by land. Men live in houses. It seeks
the tax-payer in his house. Now, were all the occupiers of land
absolute owners of the land that they occupied, even were it
true that every acre had some one person as its absolute owner,
the task would be simple. A schedule of five columns, such
we are familiar with, would set forth ' Owner's Name,' ' Place
of Residence,' ' Description of Geldable Property,' ' Hidage,'
'Amount due.' But the occupier is not always the owner;
what is more, there is no absolute ownership. Two, three, four
persons will be interested in the land; the occupier will have
a lord and that lord a lord ; the occupier may be a serf, a villein,
a sokeman ; there is commendation to be considered and soke
and all the infinite varieties of the power to ' withdraw ' the
land from the lord. Rude and hard and arbitrary lines must
be drawn. Of course the state will endeavour to collect the
geld in big sums. It will endeavour to make the great folk
answer for the geld which lies on any land that is in any way
subject to their power; thus the cost of collecting petty sums
will be saved and the tax will be charged on men who are
solvent. The central power may even hold out certain ad-
vantages to the lord who will become responsible for the geld
of his tenants or justiciables or commended men. The hints
that we get in divers counties that the lord's 'inland' has borne
no geld seem to point in this direction, though the arrange-
ments about this matter seem to have varied from shire to
shire 2 . On the pipe rolls of a later day we see that the geld
charged against the magnates is often ' pardoned.' For one
reason the king can not easily tax the rich ; for another he
1 I leave this sentence as it stood before Mr Round had published in his
Feudal England the results of his brilliant researches. Of the ' five hide unit '
I already knew a good deal ; of the ' six carucate unit ' I knew nothing.
2 Bound, Domesday Studies, i. 109.
122
Domesday Book.
Classifica-
6 eld -
Proofs of
connexion
between
can not easily tax the poor; so he gets at the poor through
the rich. The small folk will gladly accept any scheme that
will keep the tax-collector from their doors, even though they
purchase their relief by onerous promises of rents and services.
The great men, again, may find advantage in such bargains;
they want periodical rents and services, and in order to obtain
them will accept a certain responsibility for occasional taxes.
This process had gone very far on the eve of the Conquest.
Moreover the great men had enjoyed a large liberty of paying
their geld where they pleased, of making special compositions
with the king, of turning some wide and discrete territory into
a single geld-paying unit, of forming such ' manors ' as Taunton
or Berkeley or Leominster.
In King Edward's day, the occupiers of the soil might,
so it seems to us, be divided by the financier into three main
classes. In the first class we place the man who has a manor.
He has, that is, a house at which he is charged with geld.
He may be a great man or a small, an earl or a peasant ;
he may be charged at that house with the geld of a hundred
hides or with the geld of fifteen acres. In the second class
we place the villeins, borcliers, cottiers. The geld apportioned
to the land that they occupy is demanded from their lord
at his manor, or one of his manors. How he recoups himself
for having to make this payment, that is his concern ; but he
is responsible for it to the king, not as guarantor but as
principal debtor. But then, at least in the east and north }
there are many men who fall into neither of these classes. They
are not villeins, they are sokemen or ' free men ' ; but their
own tenements are not manors; they belong to or 'lie in'
some manor of their lord. These men, we think, can be
personally charged with the geld; but they pay their geld
at their lord's hall and he is in some measure bound to exact
the payment.
Any thing that could be called a strict proof of this theory
we can not oner; but it has been suggested by many facts
an( ^ phrases which we can not otherwise explain. In the first
place, our record seems to assume that every holding either
is a manor or forms part of a manor 1 . Then we are told how
1 D. B. i. 35: 'In Driteham tenet Bicardus [filius Gisleberti] 1 hidam et
dimidiam. Jillmar tenuit de Rege E. pro uno manerio....In eadem Driteham est
1 hida et dimidia quam tenuit Aluric de Kege E. pro uno manerio, et postea
TJie Manor. 123
lands 'geld' at or in some manor or at the caput manerii.
Thus lands which lie many miles away from Tewkesbury, but
which belong to the manor of Tewkesbury, ' geld in Tewkes-
bury 1 / Sometimes the same information is conveyed to us
by a phrase that deserves notice. A piece of land is said to
'defend itself in or at some manor, or, which is the same
thing, to have its wara or render its wara, that is to say,
its defence, its answer to the demand for geld, there 2 . 'In
Middleton two sokemen had 16 acres of land and they rendered
their wara in the said Middleton, but they could give and sell
their land to whom they pleased 3 .' When we are told that
certain lands are in warnode Drogonis or in warnode Archi-
episcopi, it is meant that the lands belong to Drogo or the
Archbishop for the purpose of 'defence' against the geld 4 .
It is not sufficient that land should be taxed, it must be taxed
'in' some place, which may be remote from that in which,
as a matter of physical fact, it lies 5 . One clear case of a free
tenant paying his geld to his lord is put before us : c Leofwin
had half a hide and could withdraw with his land and he
paid geld to his lord and his lord paid nothing 6 .' Besides
this we have cases in which the lord enjoys the special privilege
dedit illam terram uxori suae et filiae ad aecclesiam de Certesy, sicuti homines
de hundredo testantur. Eicardus [filius Gisleberti] calumniatur. Non iacet
ulli manerio, nee pro manerio tenet, set liberata fuit ei et modo 3 hidae geldant
pro una hida et dimidia.' To say of the second of these two plots that it
neither is a manor nor yet belongs to a manor, is to say that it is shirking the
geld. D. B. i. 48: 'Walerannus tenet Dene. ...Ista tera non adiacet ulli suo
manerio.' Here suo = Waleranni. Waleran seems to be holding land without
good title.
1 D. B. i. 163 b, Clifort. D. B. i. 58 b : ' In Winteham tenet Hubertus de
Abbate 5 hidas, de terra villanorum fuerunt 4, et geldaverunt cum hidis
manerii. '
2 The word wara means defence ; it comes from a root which has given us,
wary, warrant, warn, guarantee, weir, etc. See Vinogradoff , Villainage, 243.
3 D. B. i. 212.
4 D. B. i. 340, 366, 368. Is not the last part of the word A.-S. notu,
(business, office)?
5 D. B. i. 132 b: 'Hoc manerium tenuit Heraldus Comes et iacuit et iacet in
Hiz [Hitchin, Herts] sed wara hujus manerii iacuit in Bedefordscire T. E. E. in
hundredo de Maneheue.' D. B. i. 190, 'Haec terra est bereuuicha in Neuport
[Essex] set wara ejus iacet in Grantebrige.' When in the survey of Oxfordshire,
i. 160, it is said, 'Ibi Ihida de warland in dominio,' the taxed land is contrasted
with the inland, which in this county has gone untaxed.
6 D. B. i. 28.
124 Domesday Book.
of collecting the geld from his tenants and keeping it for
his own use 1 . A remarkable Kentish entry tells us that at
Peckham the archbishop had an estate which had been rated
at six sullungs, and then that 'of the land of this manor a
certain man of the archbishop held a half-sullung which in
King Edward's day gelded with these six sullungs, although
being free land it did not belong to the manor save for the
purpose of the scot 2 .' Here we have land so free that the
one connexion between it and the manor to which it is
attributed consists in the payment of geld it gelds along
with the other lands of the manor. In the great lawsuit
between the churches of Worcester and Evesham about the
lands at Hamton, the former contended that these lands should
pay their geld along with the other estates of the bishop 3 .
Land gelds Let us observe the first question that the commissioners
>r ' are to ask of the jurors. What is the name of the mansio ?
Every piece of geldable land is connected with some mansio,
at which it gelds. Let us observe how the commissioners
and the jurors proceed in a district where the villae and the
mansiones or maneria are but rarely coincident. The jurors
of the Armingford hundred of Cambridgeshire are speaking of
their country vill by vill. They come to the vill of Abington 4 .
Abington, they say, was rated at five hides. Of these five
hides the king has a half-hide; this lies in Litlington. Earl
Roger has one virgate ; this lies in his manor of Shingay.
Picot the sheriff has a half-virgate ; this lies and has always
lain in Morden. In what sense important to the commissioners
or their master can a bundle of strips scattered about in the
fields of Abington be said to lie in Litlington, in Shingay, or
in Morden ? We answer that it gelds there.
Geld and i Hence the importance of the hall. It is the place where
geld is demanded and paid. A manor without a hall is a
1 See the cases of the monks of Bury and the canons of S. Petroc, above,
p. 55.
2 D. B. i. 4 b : ' De terra huius manerii teu[uit] unus homo archiepiscopi
dimid. solin et cum his 6 solins geldabat T. R. E. quamvis non pertineret manerio
nisi de scoto quia libera terra erat.' The scotum in this context seems to be or
to include the geld. Compare D. B. i. Gl b : ' Haec terra iacet et appreciata est
in Gratentun quod est in Oxenefordscire et tamen dat scotum in Berchescire.'
D. B. ii. 11 : 'In Colecestra habet episcopus 14 domos et 4 acias non reddentea
consuetudinem praeter scotum nisi episcopo.'
3 See above, p. 85. * Hamilton, Inquisitio, 60.
The Manor. 125
tiling to be carefully noted, otherwise some geld may be lost 1 .
A man's land has descended to his three sons: if 'there is
only one hall/ but one demand for geld need be made ; if ' each
has his hall,' there must be three separate demands. When
we are told that two brothers held land and that each had
his house (domus) though they dwelt in one court (curia),
a nice problem is being put before us: Two halls, or one
hall Two manors or one manor 2 ?
The petty maneria of Suffolk, what can they be but The petty
holdings which geld by themselves ? The holders of them
are not great men, they have no tenants or just two or three
bordiers ; sometimes they can not ' withdraw ' their lands from
their lords. But still they pay their own taxes at their own
houses.
In supposing that forces have been at work which tend The lord
to make the lord responsible for the taxes of his men, we ^ an - s ls
are not without a warrant in the ancient dooms. ' If a king's taxes>
thegn or a lord of land (landrica) neglects to pay the Rome
penny, let him forfeit ten half-marks, half to Christ, half to
the king. If a " townsman " withholds the penny, let the lord
of the land pay the penny and take an ox from the man, and
if the lord neglects to do this, then let Christ and the king
receive the full bdt of 12 ores 3 .' The right of doing justice
is also the duty of doing justice. It is natural that the lord
with soke should become a tax-gatherer, and he will gladly
guarantee the taxes if thereby he can prevent the king's
officers from entering his precinct and meddling with his
justiciables. At no time has the state found it easy to collect
taxes from the poor ; over and over again it has been glad to
avail itself of the landlord's intermediation 4 .
Our theory that while the lord is directly and primarily Distinction
responsible for the geld of his villeins, he is but subsidiarily vuiTinsand
responsible for the geld of those of his sokemen or ' free men ' sokemen -
1 Above, p. 110. 2 D. B. i. 35 b.
3 Northumbrian Priests' Law, 58, 59, (Schmid, p. 369.)
4 An Act of 1869 (32-3 Vic. c. 41) allowed the owners of certain small houses
to agree to pay the rates which under the ordinary law would become due from
the occupiers, and authorized the vestries to allow such owners a commission of
25 per cent. See also the instructive recital in 59 Geo. III. c. 12, sec. 19 : The
small occupiers are evading the poors' rate, and the owners exact higher rents
than they would otherwise get, on the ground that the occupiers can not be
effectually assessed.
126 Domesday Booh
who are deemed to belong to his manor, is founded in part
on what we take to have been the wording of King William's
writ 1 , in part on the form taken by the returns made thereto.
The writ draws a marked line between the villein and the
sokeman. The king wishes to know how much land each
sokeman, each liber homo, holds; he does not care that any
distinction should be drawn between the lord's demesne lands
and the lands of the villeins. And, on the whole, his commands
are obeyed. A typical entry in the survey of East Anglia
will first describe in one mass the land held by the lord and
his villeins, will tell us how many carucates this land is rated
at, how many teams there are on the demesne, and how many
the men have, then it will enumerate sheep and pigs and
goats, and then, as it were in an appendix, it will add that
so many sokemen belong to this manor and that between them
they hold so many carucates or acres 2 . In Suffolk even the
names of these humble tenants are sometimes recorded 3 . And
then, we have seen 4 that there is some doubt as to whether
or no these men are or are not to be reckoned as part of the
manor for all purposes. We have to say that the manor ' with
the free men,' or ' without the free men ' is worth so much.
The lord's After all, we are only supposing that the fashion in which
^ ne danegeld was put in charge resembled in some of its
main outlines the fashion in which a very similar tax was
put in charge under Richard I. In 1194 the land-tax that
was levied for the payment of the king's ransom seems to
have been assessed according to the hidage stated in Domesday
Book 8 . Then in 1198 a new assessment was made. We are
told that the king ordained that every baron should with
the sheriffs aid distrain his men to pay the tax cast upon
them, and that if, owing to the baron's default, distresses were
1 See above, p. 24.
2 E.g. D. B. ii. 389 b, 'Clarum tenuit Aluricus pro manerio 24 car. terrae
T. R. E. Tune 40 villani....Tunc 12 carucae in dominio. ...Time 36 carucae
horninum....Huic manerio semper adiacent 5 sochemani cum omniconsuetudiue
1 car. terrae et dim. Semper 1 caruca et dimidia.'
3 E.g. D. B. ii. 339: 'In eadem villa 14 liberi homines commendati, Godricus
faber et Edricus et Uluotus et Osulfus et Uluricus et Stanrnarus et Leuietus et
"\Yihtricus et Blachemanus et Mansuna et Leuinus et Ulmarus et Ulfah et alter
Ulfah et Leofstanus de 40 acris et habeut 2 carucas et valent 10 solidos.'
4 Above, p. 115.
6 Rolls of the King's Court, Ric. I. (Pipe Roll. Soc.), p. xxiv. But apparently
there had been considerable rearrangements in some of the counties.
The Manor. 127
not made, then the amount due from the baron's men should
be seized from the baron's own demesne and he should be
left to recoup himself as best he could 1 . Now it is a liability
of this sort that we are venturing to carry back into the
Confessor's day. The lord is responsible to the state as prin-
cipal, and indeed as sole, debtor for so much of the geld as is
due from his demesne land and from the land of his villam,
while as regards any lands of ' free men ' or sokemen which are
attached to his manor, his liability is not primary nor absolute ;
he is bound to take measures to make these men pay their
taxes ; if he fails in this duty, then their taxes will become
due from his demesne 2 .
When we read that in Nottinghamshire the relief of the Manors
thegn who had six manors or less was three marks, \vhile his who to the
had more than six manors was eight pounds 8 , this may seem
to hint that some inferior limit was set to the size of the
manor. If so, it was drawn at a very low point in the scale
of tenements. Possibly some general rule had compelled all
men who held less than a bovate or half-virgate to 'add'
themselves to the manor of some lord. But the Nottingham-
shire rule is rude and arbitrary. He who has seven houses
against which geld is charged is a big man. On the other
hand, it is probable that the Norman lords brought with them
some notion, and not a very modest notion, of what a reasonably
sufficient manerium should be. The king has in some cases
rewarded them by a promise of ten or twenty manors without
specifying very carefully what those manors are to be like. He
has promised Count Eustace a hundred manors 4 . Thus we
would explain a not uncommon class of entries : ' fourteen
free men commended to Wulfsige were delivered to Rainald
1 Hoveden, iv. 46. The important words are these : ' Statutum etiam fuit
quod quilibet baro cum vicecomite faceret districtiones super homines suos ; et
si per defectum baronum districtiones factae non fuissent, caperetur de domiuico
baronum quod super homines suos restaret reddendum, et ipsi barones ad homines
suos inde caperent.' The baron's homines \ve take to be freeholders ; he would
be absolutely liable for the tax cast upon his villeinage. As to the tax of 1198
see Eng. Hist. Eev. iii. 501, 701 ; iv. 105, 108.
2 In Dial, de Scac. ii. 14, the author tells us that until recently if a baron
who owed money to the crown was insolvent, the goods of his knights could be.
seized. The idea of subsidiary liability is not too subtle for the time.
3 Above, p. 108.
4 D. B. ii. 9 : ' set Comes Eustachius 1 ex illis [hidis] tenet que non est de
suis c. [100] mansionibus.'
128 Domesday Boole.
to make up (ad perficiendum) this manor of Carlington 1 .'
in Berningham a free man held 20 acres of land and this
was delivered to Walter Giffard to make up Letheringsett 2 .'
'Peter claims the land which belonged to seventeen free men
as having been delivered to him to make up this manor 3 .'
'This land was delivered to Peter to make up some, but his
men do not know what, manor 4 .' The small ' free men ' of
the east have been ' added to ' manors to which they did not
belong in King Edward's day. A few of the free men of
Suffolk still ' remain in the king's hand ' ready to be delivered
out to complete the manors of their conquerors 5 . Here too
we may perhaps find the explanation of the entry which says
that Hugh de Port held Wallop 'for half a manor 6 .' The
king has promised him a dozen or score of manors ; and this
estate at Wallop worth but fifteen shillings a year, really no
gentleman would take it for a manor.
Summary. Such then is the best explanation that we can offer of
the manerium of Domesday Book. About details we may
be wrong, but that this term has a technical meaning which
is connected with the levy of the danegeld we can not doubt.
It loses that meaning in course of time because the danegeld
gives way before newer forms of taxation. It never again
acquires a technical meaning until the late days when retro-
spective lawyers find the essence of a manor in its court 7 .
1 D. B. ii. 233 b. 2 D. B. ii. 242 b. 3 D. B. ii. 258.
* D. B. ii. 258. 5 D. B. ii. 447. 6 D. B. i. 45 b.
7 Two objections to our theory may be met by a note. (1) Some manors are
free of geld, and therefore to make our definition correct we ought to say that a
manor is a tenement which either pays its geld at a single place or which would
do so were it not freed from the tax by some special privilege. A manerium does
not cease to be a manerium by being freed from geld. (2) In later days we may
well find a manor holden of another manor, so that a plot of land may be
within two manors. If this usage of the term can be traced back into Domesday
Book as a common phenomenon, then our doctrine is in great jeopardy. But
we have noticed no passage which clearly and unambiguously says that a tract
of land was at one and the same time both a runner turn and also a part of
another manerium. To this we must add that of the distribution of maneria
T. E. E. we only obtain casual and very imperfect tidings. If T. K. W. a free
man has been ' added to' a manerium, the commissioners have no deep interest in
the inquiry whether T. R. E. his tenement was itself an independent manerium.
A great simplification has been effected and the number of maneria has been
largely reduced.
Manor and Vill. 129
7. Manor and Vill.
After what has now been said, it is needless to repeat Manorial
that in Domesday Book the manerium and the villa are manorial
utterly different things 1 . In a given case the two may coincide, V1
and throughout a great tract of England such cases were
common and we may even say that they were normal. But
in the east this was not so. We may easily find a village
which taken as a whole has been utterly free from seignorial
domination. Orwell in Cambridgeshire will be a good example-.
In King Edward's day this vill of Orwell was rated at The vill of
4 hides : probably it was somewhat underrated for at the
date of the survey it was deemed capable of finding land for
nearly 6 teams. The following table will show who held the
four hides before the Conquest :
H. V. A.
Two sokemen, men of Edith the Fair
A sokeman, man of Abp Stigand 1J
A sokeman, man of Robert Wimarc's son 1J
A sokeman, man of the King
A sokeman, man of Earl Jilfgar 1J
A sokeman, man of Earl Waltheof 3
A sokeman, man of the King ^
Sigar a man of ^Esgar the Staller 1J
Turbert a man of Edith the Fair 3J- 5
Achil a man of Earl Harold 1
A sokeman of the King 1
S'. Mary of Chatteris J
S'. Mary of Chatteris 1
4 O 3
It will be seen that eight of the most exalted persons in
the land, the king, the archbishop, three earls, two royal
marshals or stallers, and that mysterious lady known as Edith
the Fair, to say nothing of the church of Chatteris, had a
certain interest in this little Cambridgeshire village. But
then how slight an interest it was ! Every one of the tenants
1 D. B. ii. 174: 'Hec villa fuit in duobus maneriis T. E. E.' Ibid. i. 164:
'De his 2 villis fecit Comes W. unum manerium.'
2 Inquisitio, 77-9.
3 This result comes out correctly if lH = 4v=120A. For the state of this
vill T. E. W. see Bound, Feudal England, 40.
M. 9
130 Domesday Book.
was free to 'withdraw himself,' 'to give or sell his land.' Now
we can not say that all of them were peasants. Achil the
man of Harold seems to have had other lands in the neigh-
bouring villages of Harlton and Barrington 1 . It is probable
that Turbert, Edith's man, had another virgate at Kingston 2 :
he was one of the jurors of the hundred in which Orwell lay 3 .
Sigar the man of ^Esgar was another juror, and held laud
at Thriplow, Foxton, Haslingfield and Shepreth ; he seems
to have been his lord's steward 4 . But we may be fairly certain
that the unnamed sokemen tilled their own soil, though perhaps
they had help from a few cottagers. And they can not have
been constantly employed in cultivating the demesne lands
of their lords. They must go some distance to find any such
demesne lands. The Wetherley hundred, in which Orwell
lies, is full of the sokemen of these great folk : Waltheof, for
example, has 3 men in Comberton, 4 in Barton, 3 in Grant-
chester, 1 in Wratworth : but he has no demesne land, and if
he had it, he could not get it tilled by these scattered tenants.
The Fair Edith has half a hide in Haslingfield and we are
told that this belongs to the manor of Swavesey. Now at
Swavesey Edith has a considerable manor 5 , but it can not have
got much in the way of labour out of a tenant who lived at
Haslingfield, for the two villages are a long ten miles apart.
As to the king's sokemen, their only recorded services are
the avera and the inward. The former seems to be a carrying
service done at the sheriff's bidding and to be only exigible
when the king comes into the shire, while inward seems to
be the duty of forming a body guard for the king while he
is in the shire : if in any year the king did not come, a small
sum of money was taken instead 6 .
1 His plot at Orwell is said to belong to Harlton. Then at Harlton we find
an Achil with sokemen under him, and though in D. B. he is described as a
king's thegn, this is not incompatible with his being the man of Harold for
some of his lands. At Barrington Achillus Danaus homo Haroldi has a holding
of 40 acres.
2 Inquisitio, 86. 3 Ibid. 68. 4 Ibid. 43, 44, 45, 73, 76.
6 D. B. i. 195.
6 D. B. i. 139 : ' De consuetudine 1 averam inveniebat cum Eex in scyra
veniebat, si non 5 den. reddebat." D. B. i. 190, '[Sochemanni in Fuleberne]
reddunt per annum 8 libras arsas et pensatas et unoquoque anno 12 equos et
12 inguardos si Hex in vicecomitatu veniret, si non veniret 12 sol. et 8 den. ;
T. B. E. non reddebant vicecomiti nisi averas et inguardos vel 12 sol. et 8 den.
et superplus invasit Picot [vicecomes] super Eegem.'
Manor and Vill.
131
Lest it should be thought that in picking out the village A Cam-
11 bridgeshire
of Orwell we have studiously sought a rare case, we will here hundred,
set out in a tabular form what we can learn of the state of the
hundred in which Orwell lies. The Wetherley hundred con-
tained twelve vills : it was a land of true villages which until
very lately had wide open fields 1 . In the Confessor's day the
lands in it were allotted thus :
CAMBRIDGESHIRE. WETHERLEY HUNDRED^
I. COMBERTON. A vill of 6 hides.
1. Seven sokemen of the King
A sokeman, man of Earl Waltheof )
A sokeman, man of Abp Stigand /
2. A man of Earl Waltheof
3. A sokeman, man of the King
A sokeman, man of Abp Stigand
A sokeman, man of Earl Waltheof
4 The King
II. BARTON. A vill of 7 hides.
1. Two sokemen, men of Earl Waltheof
A sokeman, man of Earl Waltheof
A sokeman, man of Earl Waltheof
2. Juhael the King's hunter
3. A sokeman, man of Edith the Fair
4. Twenty-three sokemen of the King
H.
1
2
V.
1
3
1
1
1
1
2
A.
}
oj
15
o'
15
15,
c.
4
1
2
5
B.
5
1
1
3
3
1
3
1
2
15 s
15 |
15 4 |-
oj
1
oJ
12
5
1
6
7
12
1 Wratworth has completely disappeared from the modern map ; its territory
seems to be included in that of the present Orwell. See Eot. Hund. ii. 559 and
Lysons, Magna Britannia, ii. 243. A small hamlet called Malton seems to
represent it. Whitwell also is no longer the name of a village, while the modern
Coton is not mentioned in D. B. There is now a Whitwell Farm near the
village of Coton, but in the parish of Barton. The modern Coton does not
seem to be the ancient Whitwell, for on Subsidy Rolls we may find Whitwell
annexed to Barton and Coton to Grantchester.
2 The figures in our first column represent the division of the vill among the
Norman lords. H. V. A. stand for Hides, Virgates, Acres. By C. and B. we
signify the Carucae and Boves for which ' there was land.'
3 There is some small error in this case.
4 A small conjectural emendation.
92
132 Domesday Boole.
III. GRANTCHESTER. A vill of 7 hides 1 .
H. V. A.
C. B.
1. Five sokemen, men of the King 3 o
1
2. Two sokemen, men of the King 210
1
A sokeman, man of ^sgar the Staller 2
6
3. A sokeman, man of Earl ^Elfgar 3 01
Three sokemen, men of Earl Waltheof 2 OJ
4. Godman a man of Edith the Fair 1 15
1
5. Juhael the King's hunter 1
4
6. Wulfric, the King's man 15
3
700
12 7
IV. HASLINGFIELD. A vill of 20 hides.
1. The King 7 1
8
2. Five sokemen, men of the King 300
A sokeman, man of JSsgar the Staller 130
4
3. Ealdred a man of Edith the Fair 1 15
1 4
4. Edith the Fair, belonging to Swavesey 2
4
5. Sigar a man of ^Esgar the Staller 500
6
6. Two sokemen of the King 113
2
7. Merewin, a man of Edith the Fair 12
20
22
V. HARLTON. A vill of 5 hides.
1. Achil, a King's thegn and under him
five sokemen of whom four were
his men while the fifth was the
man of Eriiulf 400
6
2. Godman a man of J^sgar the Staller 100
1
500
7
VI. BARRINGTON. A vill of 10 hides.
1. Eadric Pur a King's thegn 3
Fifteen sokemen, men of the King 4 1 15
Four sokemen, men of Earl ^Elfgar 2 15
Three sokemen, men of ^Esgar the
11
Staller 100
Eadric Pur, holding of the Church
ofChatteris 15,
2. The Church of Chatteris 200
4
3. Ethsi, holding of Robert Wimarc's son 20
3
4. Achil the Dane, a man of Earl Harold 40
6
5. A sokeman, man of the King 15
2
11 O 2
17 3
1 The Inq. Com. Cant, says 6 hides.
* An error of onp liiHp in tVm ro>-ti/>nio*o TM-.^ *,,- j_ j_
_ J. _*__!!
records do not fully agree.
Manor and Vill.
133
VII. SHEPRETH. A vill of 5 hides.
H. V. A.
C. B.
1. Four sokemen, men of the King") g Q ^
2 2
A sokeman, man of Earl ^ElfgarJ
2. The Church of Chatteris 1 1 15
1 4
3. Sigar a man of Msg&r the Staller 100
1
4. Heming a man of the King 1 15
4
5. The Church of Ely 15
2
500
5 4
VIII. ORWELL. A vill of 4 hides.
1. Two sokemen, men of Edith the Fair 20 \
A sokeman, man of Abp Stigand 1 10
A sokeman, man of Robert Wimarc's son 1 10 >
1 4
A sokeman, man of the King 20
A sokeman, man of Earl ^Elfgar 1 10J
2. A sokeman, man of Earl Waltheof 3 0)
A sokeman, man of the King 10J
1
3. Sigar, a man of JEsgar the Staller 1 10
4
4. Turbert, a man of Edith the Fair 3 12^
1 4
5. Achil, a man of Earl Harold 1
2
6. A sokeman, man of the King 1
3
7. The Church of Chatteris 10
1
8. The Church of Chatteris 7
i
400
5 2
IX. WRATWORTH. A vill of 4 hides.
1. A sokeman, man of Edith the Fair 3 10\
A sokeman, man of Abp Stigand 3
A sokeman, man of Earl JSlfgar 1 10 ,
3
A sokeman, man of Robert Wimarc's son 10
A sokeman, man of the King 20'
2. A sokeman, man of Earl Waltheof 2 20]
1
A sokeman, man of Robert Wimarc's son 10J
3. A sokeman, man of Edith the Fair 1 10
4
4. A sokeman, man of the King 1
3
5. Two sokemen, men of the King 2
4
400
5 3
X. WHITWELL. A vill of 4 hides.
1. A sokeman, man of Earl ^Elfgar 1 20'
A sokeman, man of Robert Wimarc's son 1
1 4
A sokeman, man of the King 2
2. A sokeman, man of Abp Stigand 15
A sokeman, man of Edith the Fair 10
4
[A sokeman] 15
3. Six sokemen, men of the King 110
A sokeman, man of Robert Wimarc's son 2
2
A sokeman, man of Earl ^Elfgar 1
4. Godwin a man of Edith the Fair 2
1
400
5
134
Domesday
Book.
XL
1.
2.
WIMPOLE. A vill of 4 hides.
Edith the Fair
Earl Gyrth
H.
2
1
V.
2
1
A.
15
15
c.
3
2
B.
4
5
XII. ARRINGTON. A vill of 4 hides.
1. JElfric, a King's thegn 1 1
A sokeman, man of Earl Waltheof 1
A sokeinan, man of the Abbot of Ely 1
A sokeman, man of Robert Wimarc's son
2. A man of Edith the Fair 2
The Now if by a 'manor' we mean what our historical
economists usually mean when they use that term, we must
protest that before the Norman Conquest there were very few
manors in the Wetherley hundred. In no one case was the
whole of a village coincident with a manor, with a lord's estate.
The king had considerable manors in Comberton and Hasling-
field. Sigar had a manor at Haslingfield ; the church of
Chatteris had a manor at Barrington besides some land at
Shepreth ; Wimpole was divided between Edith and Earl Gyrth ;
Harlton between Achil and Godman. But in Barton, Grant-
chester, Shepreth, Orwell, Wrat worth, Whitwell and Arlington
we see nothing manorial, unless we hold ourselves free to use that
term of a little tenement which to all appearance might easily
be cultivated by the labour of one household, at all events with
occasional help supplied by a few cottagers. Indeed it is diffi-
cult to say what profit some of the great people whose names
we have mentioned were deriving from those of their men who
dwelt in the Wetherley hundred. We take the Mercian earl
for example 2 . One of the sokemen of Grantchester, four of the
sokemen of Barrington, one of the sokemen of Shepreth, one
of the sokemen of Orwell, one of the sokemen of Wratworth,
two of the sokemen of Whitwell were ^Elfgar's men. That
^Elfgar got a little money or a little provender out of them is
probable, that they did some carrying service for him is possible
and perhaps they aided him at harvest time on some manor
1 A small emendation justified by Inq. Eliensis (Hamilton, p. 110).
2 JElfgar died before King Edward ; Freeman, Norman Conquest, ed. 3,
iii. 4G9, places his death in or about 10G2.
Manor and Vill. 135
of his in another part of the county ; but that they were not
the tillers of his land seems clear 1 .
What is more, our analysis of this Wetherley hundred enables The soke-
us to drive home the remark that very often a sokeman was ignonal
not the sokeman of his lord or, in other words, that he was not J ustice -
under seignorial justice 2 . ^Elfgar had ten sokemen scattered
about in six villages. Did he hold a court for them ? We
think not. Did they go to the court of some distant manor ?
We think not. The court they attended was the Wetherley
hundred-moot. One of the sokemen in Arrington was in a some-
what exceptional position exceptional, that is, in this hundred.
Not only was he the man of the Abbot of Ely, but his soke
belonged to the Abbot ; and if he sold his tenement, and this
he could do without the Abbot's consent, the soke over his land
would 'remain' to the Abbot 3 . He was not only his lord's
man but his lord's justiciable and probably attended some
court outside the hundred. But for the more part these men
of Wetherley were not the justiciables of their lords. It was
a very free hundred when the Normans came there : much too
free for the nation's welfare we may think, for these sokemen
could go with their land to what lord they pleased. Also be it
noted in passing that the churches have little in Wetherley.
In 1086 there had been a change. The sokemen had Changes
disappeared. The Norman lords had made demesne land where Wetherley
their English antecessores possessed none. Count Roger had r
instituted a seignorial court at Orwell. He had borrowed
three sokemen 'to hold his pleas' from Picot the sheriff and
had refused to give them up again 4 . Apparently they had
sunk to the level of villani. Two centuries afterwards we
1 The history of the earldoms during Edward's reign is exceedingly obscure.
See Freeman's elaborate note : Ibid., 555. In particular Cambridgeshire seems
to have lain now in one and now in another earldom. Thus it comes about
that Cambridgeshire sokemen are commended some to jElfgar, some to Waltheof,
some to Harold, some to Gyrth. JUlfgar, for example, had at one time been
earl in East Anglia. Men who had commended themselves to an earl would,
unless they ' withdrew themselves,' still be his men though he had ceased to be
earl of their county.
2 See above, p. 105. Observe how frequently our record speaks of ' soche-
manni homines Algari' and the like. These sokemen are ^Ifgar's men; but
are not properly his sokemen.
3 Inq. Com. Cant. 110. This is from the Inquisitio Eliensis. Compare
p. 83.
4 Inq. Com. Cant. 77-8.
136 Domesday Book.
see the hundred of Wetherley once more. There is villeinage
enough in it. The villein at Orwell, for example, holds only
10 acres but works for his lord on 152 days in the year, besides
boon-days 1 . And yet we should go far astray if we imposed
upon these Cambridgeshire villages that neat manorial system
which we see at its neatest and strongest in the abbatial car-
tularies. The villages do not become manors. The manors
are small. The manors are intermixed in the open fields.
There are often freeholders in the village who are not the
tenants of any lord who has a manor there. A villein will
hold two tenements of two lords. The villein of one lord will
be the freeholder of another. The ' manorial system ' has been
forced upon the villages, but it fits them badly 2 .
Manorial- In the thirteenth century the common field of a Cambridge-
isniinCaiii- . . i . j
bridge- shire village was often a very maze of proprietary rights, and
yet the village was an agrarian whole. Let us take, for
example, Duxford as it stood in the reign of Edward I. 3 We
see 39 villein tenements each of which has fourteen acres in
the fields. These tenements are divided between five different
manors. Four of our typical ' townsmen ' hold of Henry de
Lacy, who holds of Simon de Furneaux, who holds of the Count
of Britanny, who holds of the king. Two hold of Ralph of
Duxford, who holds of Basilia wife of Baldwyn of St George,
who holds of William Mortimer, who holds of Simon de
Furneaux, who holds of the Count of Britanny, who holds
of the king. Eight hold of the Templars, who hold of Roger
de Colville, who holds of the Earl of Albemarle, who holds
of the king. Nine hold of William le Goyz, who holds of
Henry of Boxworth, who holds of Richard de Freville, who
holds of the king. Sixteen hold of John d'Abernon, who
holds of the Earl Marshal, who holds of the king. Three of
the greatest ' honours ' in England are represented. Three
monasteries and two parochial churches have strips in the
fields. And yet there are normal tenements cut according
to one pattern, tenements of fourteen acres the holders of
1 Rot. Hund. ii. 558.
2 One instance may suffice. In Sawston (Rot. Hund. ii. 575-80) are three
manors, A, B, C ; A has a sub-manor. One Thomas Dovenel holds in villeinage
of the lord of A ; in villeinage of the lord of B ; in freehold of the lord of B ;
in freehold of a tenant of the lord of B ; in freehold of a tenant of a tenant of
the lord of B.
3 Rot. Hund. ii. 580.
Manor and Vill. 137
which, though their other services may differ, pay for the
more part an equal rent 1 . The village seems to say that it
must be one, though the lords would make it many. And
then we look back to the Confessor's day and we see that a
good part of Duxford was held by sokemen 8 .
Perhaps we shall be guilty of needless repetition ; but what The soke-
is written in Domesday Book about maneria is admirably the'manors.
designed for the deception of modern readers whose heads are
full of 'the manorial system.' Therefore let us look at two
Hertfordshire villages. In one of them there is a manerinm
which Ralph Basset holds of Robert of Ouilly 3 . It has been
rated at 4, but is now rated at 2 hides. There is land for
4 teams. In demesne are 2 teams; and 3^- villani with
2 sokemen of 1 hide and 5 bordarii have 2 teams. There are
1 cottager and 1 serf and a mill of 10 shillings and meadow
for 3 teams. It is now worth 3 ; in King Edward's day it
was worth 5. Now here, we say, is a pretty little manor of
the common kind. Let us then explore its past history. ' Five
sokemen held this manor.' Yes, we say, before the Conquest
this manor was held in physically undivided shares by five
lords. Their shares were small and they were humble people;
but still they had a manor. But let us read further. 'Two
of them were the men of Brihtric and held 1^ hides; other
two were the men of Osulf the son of Frane and held 1|- hides;
and the fifth was the man of Eadmer Atule and held a hide.'
We will at once finish the story and see how Robert of Ouilly
came by this manor. ' No one of these five sokemen belonged
to his antecessor Wigot ; every one of them might sell his land.
One of them bought (i.e. redeemed) his land for nine ounces
of gold from King William, so the men of the hundred say,
and afterwards turned for protection to Wigot.' So Robert's
title to this manor is none of the best. But are we sure that
before the Conquest there was anything that we should call
a manor ? These five sokemen who have unequal shares, who
have three different lords, who hold in all but 4 team-lands,
whose land is worth but 5, do not look like a set of co-
parceners to whom a 'manor' has descended. When Robert
of Ouilly has got his manor there are upon it 2 sokemen,
1 On four out of the five manors the rent is 2s. 3d. on the fifth 3s. Od.
2 Ing. Com. Cant. 41. a D. B. j_ 137 ^
138 Domesday Book.
3 villeins, 5 bordarii, a cottager and a serf. It was not a
splendid manor for five lords.
Hertford- We turn over a few pages. Hardouin of Eschalers has
meu . a manor rated at 5| hides 1 . It contains land for 8 teams.
In demesne are 2 hides less 20 acres, and 3 teams; 11 villani
with the priest and 5 bordarii have 5 teams. There are
4 cottagers and 6 serfs. It is worth 9; in the Confessor's
day it was worth 10. Who held this manor in the past?
Nine sokemen held it. Rather a large party of joint lords,
we say ; but still, families will grow. Howbeit, we must finish
the sentence: 'Of these, one, Sired by name, was the man of
Earl Harold and held 1 hide and 3 virgates for a manor;
another, Alfred, a man of Earl ^Elfgar, held 1^ hides for a
manor; and the other seven were sokemen of King Edward
and held 2 hides and 1 virgate and they supplied the sheriff
with 9 pence a year or 2| averae (carrying services).' No, we
have not been reading of the joint holders of a 'manor'; we
have been reading of peasant proprietors. Two of them
were substantial folk; each of the two held a manerium at
which geld was paid ; the other seven gelded at one of the
king's maneria under the view of his bailiffs. Maneria there
have been everywhere ; but ' manors ' we see in the making.
Hardouin has made one under our eyes.
The small We hear the objection that, be it never so humble, a manor
is a manor. But is that truism quite true ? If all that we
want for the constitution of a manor is a proprietor of some
land who has a right to exact from some other man, or two
or three other men, the whole or some part of the labour that
is necessary for the tillage of his soil, we may indeed see manors
everywhere and at all times. Even if we introduce a more
characteristically medieval element and demand that the tillers
shall be neither menial servants nor labourers hired for money,
but men who make their living by cultivating for their own
behoof small plots which the proprietor allows them to occupy,
still we shall have the utmost difficulty if we would go behind
manorialism. But suppose for a moment that we have a village
the land of which is being held by nine sokemen, each of whom
has a hide or half-hide scattered about in the open fields, and
each of whom controls the labour of a couple of serfs, shall we
not be misleading the public and ourselves if we speak of nine
1 D. B. i. 141 b.
Manor and Vill. 139
manors or even of nine ' embryo manors ' ? At any rate it
is clear enough that if these estates of the sokemen are 'embryo
manors,' then these embryos were deposited in the common
fields. In that case the common fields, the hides and yard-
lands of the village are not the creatures of manorialism.
We have seen free villages ; we have seen a free hundred. The Danes
We might have found yet freer hundreds had we gone to dom.
Suffolk. We have chosen Cambridgeshire because Cambridge-
shire can not be called a Danish county, except in a sense in
which, notwithstanding the wasted condition of Yorkshire,
about one half of the English nation lived in Danish counties.
When men divide up England between the three laws, they
place Cambridgeshire under the Danelaw ; but to that law
they subject about one half of the inhabitants of England.
There may have been many men of Scandinavian race in Cam-
bridgeshire ; but we find hundreds not wapentakes, hides not
carucates, while among the names of villages there are few indeed
which betray a Scandinavian origin. The Wetherley hundred
was not many miles away from the classic fields of Hitchin 1 .
But in truth we must be careful how we use our Dane. The Danish
i-r -r^-i i i i~* -i -I counties.
Yorkshire was a Danish county in a sense m which Cambridge-
shire was not Danish ; it was a land of trithings and wapentakes,
a land without hides, where many a village testified by its
name to a Scandinavian settlement. And yet to all appearance
it was in the Confessor's day a land where the manors stood
thick 2 . Then we have that wonderful contrast between
Yorkshire and Lincolnshire which Ellis summed up in these
figures :
Sochemanni Villani Bordarii
Lincolnshire 11,503 7,723 4,024
Yorkshire 447 5,079 1,819
Perhaps this contrast would have been less violent if
Yorkshire had not been devastated : but violent it is and
1 Inq. Com. Cant., pp. 108-110. As names of the Abbot of Ely's sokemen in
Meldreth and neighbouring villages we have Grimmus, Alsi Cild, Wenesi, Alsi,
Leofwinus, JMricus, Godwinus, Almarus, Aluricus frater Goduuini, Mdriz,
Alsi Berd, Alricus Godingessune, Wenestan, Alwin Blondus, Alfuuinus, Alnre-
dus, Alricus Brunesune, Alware, Hunuft, Hunwinus, Brizstanus. This does not
point to a preponderance of Norse or Danish blood.
' 2 Owing to the wasted condition of Yorkshire, the information that we
obtain of the T. E. E. is meagre and perfunctory. But what seems character-
istic of this county is a holding of two or three ploughlands which we might
fairly call an embryo manor.
140 Domesday Book.
must be. It will provoke the remark that the 'faults' (if
any faults there be) in a truly economic stratification of
mankind are not likely to occur just at the boundaries of the
shires, whereas so long as each county has a court from which
there is no appeal to any central tribunal, we may expect
to find that lines which have their origin in fiscal practice
will be sharp lines and will coincide with the metes and
bounds of jurisdictional districts.
The con- Nor should it escape remark that the names by which a
between grand distinction is expressed are in their origin very loose
terms an d etymologically ill-fitted to the purpose that they
are serving. In English the villanus is the tunesman or, as we
should say, the villager. And yet to all seeming the sokeman
is essentially a villager. What is more the land where the
sokemen and ' free men ' lived was a land of true villages, of big
villages, of limitless 'open fields,' whereas the hamleted west was
servile. Then again sokeman is a very odd term. If it signified
that the man to whom it is applied was always the justiciable
of the lord to whom he was commended, we could understand it.
Even if this man were always the justiciable of a court that had
passed into private hands, we could still understand it. But ap-
parently there are plenty of sokemen whose soke 'is' or 'lies' in
those hundred courts that have no lord but the king. The best
guess that we can make as to the manner in which they have
acquired their name is that in an age which is being persuaded
that some ' service ' must be done by every one who holds land,
suit of court appears as the only service that is done by all
these men. They may owe other services; but they all owe
suit of court. If so we may see their legal successors in those
freeholders of the twelfth century who are 'acquitting' their
lords and their villages by doing suit at the national courts 1 .
But when a new force comes into play (and the tribute to the
pirate was a new and a powerful force) new lines of demarcation
must be drawn, new classes of men must be formed and words
1 See the early extents in Cart. Earns, iii. Thus (242) at Hemingford:
*R. V. tenet tres virgatas et diraidiam et sequitur hundredum et comitatum....
11. H. tenet duas virgatas et sequitur hundredum et comitatum.' Elsworth
(249) : 'K. films T. duas virgatas. Pro altera sequitur comitatum et hundredum ;
pro altera solvit quinque solidos.' Brancaster (261) : ' Cnutus avus Petri tenebat
terram suam libere in tempore Eegis Henrici et sequebatur comitatum et
hundredum, et fuit quietus ab omni servitio.' See also Vinogradoff, Villain-
age, 441 if.
Manor and Vill. 141
will be borrowed for the purpose with little care for etymological
niceties. One large and widely-spread class may find a name
for itself in a district where the ordinary 'townsmen' or villagers
are no longer treated as taxpayers responsible to the state, while
some practice peculiar to a small part of the country may confer
the name of ' sokemen ' on those tillers of the soil who are
rated to the geld. We are not arguing that this distinction,
even when it first emerged, implied nothing that concerned the
economic position of the villein and the sokeman. The most
dependent peasants would naturally be the people who could
not be directly charged with the geld, and the peasants who
could not pay the geld would naturally become dependent on
those who would pay it for them ; still we are not entitled to
assume that the fiscal scheme accurately mirrored the economic
facts, or that the varying practice of different moots and
different collectors may not have stamped as the villeins of one
shire those who would have been the sokemen of another 1 .
Be this as it may, any theory of English history must face Free
the free, the lordless, village and must account for it as for VI
one of the normal phenomena which existed in the year of
grace 1066. How common it was we shall never know until
the material contained in Domesday Book has been geo-
graphically rearranged by counties, hundreds and vills. But
whether common or no, it was normal, just as normal as the
village which was completely subject to seignorial power.
We have before us villages which, taken as wholes, have no
lords. What is more, it seems obvious enough that, unless
there has been some great catastrophe in the past, some
insurrection of the peasants or the like, the village of Orwell
and other villages might be named by the dozen has never
had a lord. Such lordships as exist in it are plainly not the
relics of a dominion which has been split up among divers
persons by the action of gifts and inheritances. The sokemen
1 Some thirty years ago the whole political world of England was agitated
by controversy about 'the compound householder.' Was he to have a vote?
The historian of the nineteenth century will not treat the compound house-
holders as forming one homogeneous class of men whose general status could be
marked off from that of other classes. Nor, it is to be hoped, will etymological
guesses lead him to believe that the compound householder held a compound
house. He will say that a landlord ' compounded for ' the rates of the
aforesaid householder. Mutatis mutandis may not the villein have been the
compound householder of the eleventh century?
142 Domesday Book.
of Orwell have worshipped every rising sun. One has com-
mended himself to the ill-fated Harold, another to the ill-fated
Waltheof, a third has chosen the Mercian ^Elfgar, a fourth has
placed himself under the aspiring Archbishop ; yet all are free
to 'withdraw.' We have here a very free village indeed, for
its members enjoy a freedom of which no freeholder of the
thirteenth century would even dream, and in a certain sense
we have here a free village community. How much com-
munalism is there ? Of this most difficult question only a
few words will now be said, for our guesses about remote ages
we will yet a while reserve.
Village In the first place, we can not doubt that the 'open field
ties!' system ' of agriculture prevails as well in the free villages as in
those that are under the control of a lord. The sokeman's hide
or virgate is no ring- fenced ' close ' but is composed of many
scattered strips. Again, we can hardly doubt that the practice
of 'co-aration' prevailed. The sokeman had seldom beasts
enough to make up a team. It is well known that the whole
scheme of land-measurements which runs through Domesday
Book is based upon the theory that land is ploughed by teams of
eight oxen. It is perhaps possible that smaller teams were some-
times employed ; but when we read that a certain man ' always
ploughed with three oxen 1 ,' or 'used to plough with two oxen
but now ploughs with half a team 1 ,' or ' used to plough with a
team but now ploughs with two oxenV we are reading, not of
small teams, but of the number of oxen that the man in
question contributed towards the team of eight that was made
up by him and his neighbours. When of a piece of land in
Bedfordshire it is said that ' one ox ploughs there,' this means
that the land in question supplies but one ox in a team of
eight 4 ; and here and not in any monstrous birth do we find
the explanation of ' terra est dimidio bovi et ibi est semibos 5 ':
there is a sixteenth part of a teamland and its tenant along
with some other man provides an ox. There may have been
light ploughs as well as heavy ploughs, but the heavy plough
must have been extremely common, since the term 'plough
team' (caruca) seems invariably to mean a team of eight.
The Then one notable case meets our eye in which the owner-
villagers as
co-owuers. l D. B. ii. 204: ' 3 liberi homines... semper arant cum 3 bobus."
2 D. B. ii. 184 b. 3 D. B. ii. 192 b. 4 D. B. i. 211.
6 D. B. i. 218 b. Compare the 'dimidius porous' of ii. 287.
Manor and Vill. 143
ship of land, of arable land, seems to be attributed to a village
community. In Goldington, a village in Bedfordshire, Walter
now holds a hide ; there is land for one team and meadow for
half a team. ' The men of the vill held this land in common
and could sell it 1 .' Apparently the men of the vill were ^Elfwin
Sac a man of the Bishop of Lincoln who held half a team-land
and ' could do what he liked with it/ nine sokemen who held
three team-lands between them, three other sokemen who held
three team-lands, and ^Elfmser a man of Asgil who held three
team-lands 2 . How it came about that these men, besides
holding land in severalty, held a tract in common, we are left
to guess. Nor can we say whether such a case was usual or
unusual. Very often in Little Domesday we meet an entry
which tells how x free men held y acres and had z teams ; for
example, how 15 free men held 40 acres and had 2 teams 3 . In
general we may well suppose that each of them held his strips
in severalty, but we dare not say that such a phrase never points
to co-ownership.
Then as to such part of the land as is not arable : Even in Tne waste
the free village a few enclosed meadows will probably be found ; vill.
but the pasture ground lies open for ' the cattle of the vill.' At
the date of the survey, though several Norman lords have
estates in one vill, the common formula used in connexion
with each estate is, not ' there is pasture for the cattle of this
manor, or of this land,' but ' there is pasture for the cattle of
the vill.' Occasionally we read of 'common pasture' in a
context which shows that the pasture is common not to several
manorial lords but to the villeins of one lord 4 . In the hundred
of Coleness in Suffolk there is a pasture which is common to
all the men of the hundred 5 . But, as might be expected, we
hear little of the mode in which pasture rights were allotted or
regulated. Such rights were probably treated as appurtenances
of the arable land : ' The canons of Waltham claim as much
1 D. B. i. 213 b : ' Hanc terrain tenuerunt homines villae communiter et
vendere potuerunt.'
2 D. B. i. 210, 212 b, 213 b.
3 D. B. i. 214 : ' In Meldone Johannes de Eoches occupavit iniuste 25 acraa
super homines qui villam tenent.' This is a vague phrase.
4 e.g. D. B. i. 112 b: ' Colsuen homo Episcopi Constantiensis aufert ab hoc
manerio communem pasturam quae ibi adiacebat T. B. E. et etiam T. E. W.
quinque annis.'
5 D. B. ii. 339 b.
144 Domesday Book.
wood as belongs to one hide 1 .' If the rights of user are known,
no one cares about the bare ownership of pasture land or wood
land : it is all one whether we say that Earl Edwin is entitled
to one third of a certain wood or to every third oak that grows
therein 2 .
Co-owner- Sometimes the ownership of a mill is divided into so many
muis? shares that we are tempted to think that this mill has been
erected at the cost of the vill. In Suffolk a free man holds a
little manerium which is composed of 24 acres of land, 1 acres
of meadow and 'a fourth part of the mill in every third
year 3 ': he takes his turn with his neighbours in the enjoy-
ment of the revenue of the mill. We may even be led to
suspect that the parish churches have sometimes been treated
as belonging to the men of the vill who have subscribed to
erect or to endow them. In Suffolk a twelfth part of a church
belongs to a petty manerium which contains 30 acres and is
cultivated by two bordiers with a single team 4 . When a parish
church gets its virgate by ' the charity of the neighbours 5 ,'
when nine free men give it twenty acres for the good of their
souls 6 , we may see in this some trace of communal action.
Thesystem Incidentally we may notice that the system of virgate
in a free holdings seems quite compatible with an absence of seignorial
inage ' control. In the free village, for example in Orwell, we shall
often find that one man has twice, thrice or four times as much
as another man: the same is the case in the manorialized
villages of Middlesex, where a villein may have as much as a
hide or as little as a half-virgate ; but all the holdings will bear,
at least in theory, some simple relation to each other. Thus in
Orwell the virgates are divided into thirds and quarters, and in
several instances a man has four thirds of a virgate. In Essex
and East Anglia, though we may find many irregular and many
very small holdings, tenements of 60, 45, 40, 30, 20, 15 acres
are far commoner than they would be were it not that a unit
of 120 acres will very easily break into such pieces. Domesday
Book takes no notice of family law and its ' vendere potuit '
merely excludes the interference of the lord and does not imply
that a man is at liberty to disappoint his expectant heirs.
1 D. B. i. 140 b.
2 D. B. i. 75 : 'tercia vero pars vel tercia quercus erat Comitis Eduini.'
3 D. B. ii. 404 b: ' et in tercio anno quarta pars mol[eiidini].'
* D. B. ii. 291 b. 5 D. B. ii. 24 b. 6 D. B. ii. 438.
Manor and Vill. 145
Very possibly there has been among the small folk but little
giving or selling of land.
Nor is a law which gives the dead man's land to all his sons The vir-
as co-heirs a sufficient force to destroy the system of hides and f 11
virgates when once it is established by some original allotment. ai
In the higher ranks of society we see large groups of thegns
holding land in common, holding as the Normans say 'in
parage.' We can hardly doubt that they are co- heirs holding
an inheritance that has not been physically partitioned 1 .
Sometimes it is said of a single man that he holds in parage 2 .
This gives us a valuable hint. Holding in parage implies that
one of the ' pares,' one of the parceners, as a general rule he
would be the eldest of them is answerable to king and lord
for the services due from the land, while his fellows are bound
only to him ; they must help him to discharge duties for which
he is primarily responsible 3 . This seems the import of such
passages as the following ' Five thegns held two bovates ; one
of them was the senior (the elder, and we may almost say the
lord) of the others 4 ' ' Eight thegns held this manor ; one of
them Alii, a man of King Edward, was the senior of the
others 8 ' ' Godric and his brothers held three carucates ; two
of them served the third 6 ' ' Chetel and Turver were brothers
and after the death of their father they divided the land, but
so that Chetel in doing the king's service should have help
from Turver his brother 7 ' ' Siwate, Alnod, Fenchel and Aschil
divided the land of their father equally, and they held in such
wise that if there were need for attendance in the king's host
and Siwate could go, his brothers were to aid him [with money
and provisions] ; and on the next occasion another brother was
to go and Siwate like the rest was to help him ; and so on down
1 D. B. i. 83 : ' sex taini in paragio,' ' quatuor taini in paragio. ' Ibid. 83 b :
'novem taiui in paragio.' Ibid. 168 b: ' quinque fratres tenuerunt pro 5
maneriis et poterant ire quo volebant et pares erant.'
2 D. B. i. 96 b: 'dim. hida quam tenebat T. E. E. unus tainus in paragio.'
Ibid. 40 : ' Brictric tenuit de episcopo in paragio.'
3 But it was possible for several men to be holding in parage and yet for
each of them to have a separate manerium. This seems to imply that their
holdings were physically separate and that each holding was separately liable
for geld, though as regards other matters, e.g. military service, the division wa8
ignored.
4 D. B. i. 291. 6 D. B. i. 145 b. 6 D. B. i. 341.
7 D. B. i. 354.
M. 10
146 Domesday Booh
the list; but Siwate was the king's man 1 .' No doubt similar
arrangements were made by co-heirs of lowlier station 2 . The
integrity of the tenement is maintained though several men
have an interest in it. In relation to the lord and the state
one of them represents his fellows. When the shares become
very small, some of the claimants might be bought out by the
others 3 .
The farm But, to return to the village, we must once more notice
that the Canons of St Paul's have let their manor of Willesden
to the villeins 4 . This leads us to speculate as to the incidence
and collection of those great provender rents of which we read
when royal manors are described. In King Edward's day a
royal manor is often charged with the whole or some aliquot
share of a ' one night's farm,' that is one day's victual for the
king's household. Definite amounts of bread, cheese, malt,
meat, beer, honey, wool have to be supplied ; thus, for example,
Cheltenham must furnish three thousand loaves for the king's
dogs and King's Barton must do the like 5 . Then too Edward
the sheriff receives as the profits of the shrievalty of Wilt-
shire, 130 pigs, 32 bacons, certain quantities of wheat, malt,
oats, and honey, 400 chicken, 1600 eggs, 100 cheeses, 100 lambs,
52 fleeces 6 . Between the king and the men of the manor, no
doubt there stands a farmer, either the sheriff or some other
person, who is bound to supply the due quantity of provender ;
but to say that this is so does not solve the problem that is
before us. We have still to ask how this due quantity is
obtained from the men of the village. It is a quantity which
can be expressed by round figures ; it is 3000 dog-cakes, or
the like. We do not arrive at these pretty results by adding
up the rents due from individuals. Again, just in the counties
which are the homes of freedom we hear much of sums of
1 D. B. i. 375 b : ' Siuuate et Alnod et Fenchel et Aschil equaliter et pariliter
diviserunt inter se terrain patris sui T. R. E. et ita tenuerunt ut si opus fuit
expeditions Begis et Siuuate potuit ire, alii fratres iuverunt eum. Post istum,
ivit alter et Siuuate cum reliquis iuvit eum ; et sic de omnibus. Siuuate tamen
fuit homo Regis.'
2 D. B. i. 206 : ' sex sochemanni id est Aluuoldus et 5 fratres eius habuerunt
4 hid. et dim. ad geldum.'
3 D. B. i. 233 : ' Hanc terrain tenuerunt 2 fratres pro 2 maneriis, et postea
emit alter ab altero partem suam et fecit unum manerium de duobus T. R. E.'
4 D. B. i. 127 b : ' Hoc manerium teneut villani ad firmam cauonicorum.'
6 D. B. i 162 b.
D. B. i. 69.
Manor and Vill. 147
money that are paid to a lord by way of free will offering 1 . In
Norfolk and Suffolk the villagers will give a yearly gersuma,
in Lincoln they will pay a yearly tailla, and this will be a neat
round sum ; very often it is 20 shillings, or 40 or 10.
In this particular we seem to see an increase of something Bound
that may be called communalism, as we go backwards. Of raised
course in the cartularies of a later age we may discover round ^
sums of money which, under the names of ' tallage ' or ' aid '
are imposed upon the vill as a whole ; but in general we may
accept the rule that tributes to be paid by the vill as a whole,
in money or in kind, are not of recent origin. They are more
prominent in the oldest than in other documents. As examples,
we may notice the 'cornage' of the Boldon Book one vill
renders 20 shillings, another 30 shillings for cornage 2 ; also the
contributions of sheep, poultry, bread and cloth which the vills
of Peterborough Abbey bring to the monks on the festival of
their patron saint one vill supplying ten rams and twenty
ells of cloth, another four rams, five ells of cloth, ten chicken
and three hundred loaves 3 . But then we have to notice that
a village which has to pay a provender rent or even a tailla
or gersuma is not altogether a free village. Its communal
action is called out by seignorial pressure.
And as we go backwards the township seems to lose such The
definiteness as is given to it by the police law of the thirteenth
century 4 . This was to be expected, for such law implies a law *
powerful, centralized state, which sends its justices round the
country to amerce the townships and compel these local
communities to do their duties. Once and once only does
the township appear in the Anglo-Saxon dooms. This is
in a law of Edgar. If a man who is on a journey buys
cattle, then on his return home he must turn them onto the
common pasture, 'with the witness of the township.' If he
fails to do so, then after five nights the townsmen are to give
information to the elder of the hundred, and in that case
they and their cattle-herd will be free of blame, and the
man who brought the cattle into the town will forfeit them,
1 D. B. ii. 118 b Yarmouth: 'De gersuma has 4 libras dant burgenses gratis
et amicitia.'
2 Thus D. B. iv. 568: 'Due ville reddunt 30 sol. de cornagio.' Ib. 570:
' Queryngdonshire reddit 76 sol. de cornagio.'
s Black Book of Peterborough, passim. 4 Hist. Engl. Law, i. 550.
102
148 Domesday Book.
half to the lord and half to the hundred. If, on the other hand,
the townsmen fail in the duty of giving information, their
herd will pay for it with his skin 1 . The township has very little
organization of which the state can make use. It does not
seem even to have an ' elder' or head-man, and, from the threat
of a flogging, we may gather that its common herdsman will
be a slave. Purchases of cattle can not be made 'with the
witness of the township ' ; the purchaser ought to seek out two
or three of those twelve standing witnesses who are appointed
for every hundred 2 . So again, hi the twelfth century we see
the finder of a stray beast bringing it into the vill; he
conducts it to the church-door and tells his story to the priest,
the reeve and as many of the best men of the vill as can be
got together. Then the reeve sends to the four neighbouring
vills, calls in from each the priest, the reeve and three or four
men and recounts the tale in their presence. Then on the
following day he goes to the head-man of the hundred and puts
the whole matter before him and delivers up the beast to him,
unless indeed the place where it was found straying was within
the domain of some lord who had sake and soke 3 . Here again,
the organization of the township appears to be of a most rudi-
mentary kind. It has no court, unless its lord has sake and
soke; it has no power to detain an estray for safe custody.
In this very simple case it requires the help of other vills and
must transmit the cause to the hundred court. And so again,
though there may be some reason for thinking that at one time
the murder fine the fine payable if the slayer of a foreigner was
not arrested was primarily exigible from the vill in which the
corpse was found, the hundred being but subsidiarily liable, still
this rule seems to have been soon abandoned and the burden
of the fine, a fine far too heavy for a single vill, was cast upon
the hundred*. For all this, however, the law knew and made
use of the township. The Domesday commissioners required
the testimony of the priest, the reeve and six villani of every
vill. So soon as the law about suit to the hundred court
becomes at all plain, the suit is due rather from vills than from
men, and the burden is discharged by the lord of the vill or
1 Edgar iv. 8. 9. 2 Ibid. 6.
8 Leg. Edw. Conf. 24.
* Leg. Edw. Conf. 15. Compare Leg. Henr. 91; Leg. Will. Conq. i. 22;
Leg. Will. Conq. in. 3.
Manor and VilL 149
his steward, or, if neither of them can attend, then by the
priest, the reeve and four of the vill's best men 1 .
How could these requirements be met by a vill which had The free
no lord ? It would be a fair remark that the existence of such Norman
vills is not contemplated by the Norman rulers. The men who
will represent the vill before the Domesday commissioners will
in their eyes be villani. This assumption is becoming true
enough. We have seen Orwell full of sokemen ; in 1086 there
is never a sokeman in it; there is no one in it who is above
the rank of a villein. Count Roger and Walter Giffard, Count
Alan and Geoffrey de Mandeville can make such arrangements
about the suit of Orwell, the reeveship of Orwell, as they think
fit. Everywhere the Frenchmen are consolidating their manors,
creating demesne land where their English antecessores had
none, devising scientific frontiers, doing what in them lies to
make every vill a manor. Thus is evolved that state of things
which comes before us in the thirteenth century. The work
of the foreigners was done so completely that we can see but
very little of the institutions that they swept away.
On the whole, however, we shall do well not to endow the Organiza-
free township of the Confessor's day with much organization, f^"
We may be certain that, at least as a general rule, it had no vlUa s e -
court; we may doubt very gravely whether it always had any
elder, head-man, or reeve. Often it was a small and yet a
heterogeneous, and a politically distracted body. Some of its
members might be attached to the house of Godwin, some had
sworn to live and die for the house of Leofric. Just because it
is free it has few, if any, communal payments to make. Only
if it comes under a single lord will it have to render a provender
rent, a tailla or gersuma. As a sphere for communal action
there remains only the regulation of the arable lands, the woods
and waste. We can not say for certain that these give scope
for much regulation. The arable strips are held in severalty ;
if by chance some of them are held in common, this in all
probability is a case rather of co-ownership than of communal
ownership. The pasture rights may well be regarded as appur-
tenances of the arable strips. The practice of ' co-aration ' need
not be enforced by law ; the man who will not help his neigh-
bours must be content to see his own land unploughed. The
course of agriculture is fixed and will not be often or easily
1 Leg. Henr. 7 7.
150 Domesday Boole,.
altered. The ' realism ' which roots every right and duty in
a definite patch of soil, the rapid conversion of new arrange-
ments into immemorial customs, the practice of taking turn
and turn about, the practice of casting lots, these will do much
towards settling questions such as our modern imaginations
would solve by means of a village council. No doubt, from
time to time a new departure is made ; new land is reclaimed
from the waste, perhaps the pasture rights are stinted or re-
distributed, a mill is built or a church is endowed; but all
this requires no periodic assemblies, no organization that we
dare call either permanent or legal. Once in five years or so
there may be something to be done, and done it will be by
a resolution of the villagers which is or calls itself an unanimous
resolution. If the Cambridgeshire townships had been land-
owning corporations, each of them would have passed as a single
unit into the hands of some Norman baron. But this did not
happen. On the contrary, the Norman barons had to content
themselves with intermixed strips ; the strips of ^Elfgar's men
went to Count Roger, the strips of Edith's men went to Count
Alan. We are far from denying the existence of a communal
sentiment, of a notion that somehow or another the men of
the vill taken as a whole owned the lands of the vill, but this
sentiment, this notion, if strong was vague. There were no
institutions in which it could realize itself, there was no form
of speech or thought in which it could find an apt expression.
It evaded the grasp of law. At the touch of jurisprudence the
township became a mere group of individuals, each with his
separate rights 1 .
8. The Feudal Superstructure.
The higher It remains that we should speak very briefly of the higher
men . ranks of men and the tenure by which they held their land.
Little accurate information can be extorted from our record.
The upper storeys of the old English edifice have been de-
molished and a new superstructure has been reared in their
stead. It is not the office of Domesday Book to tell us much
even of the new nobility, of the services which the counts
1 It is possible that the entry (i. 204) which tells how the sokemen of
Broughton enjoyed the smaller ivites points to a free village court; but we have
put another interpretation upon this ; see above, p. 99.
The Feudal Superstructure. 151
and barons are to render to the king in return for their
handsome endowments : as to the old nobility, that has pe-
rished. Still there are some questions that we ought to ask.
The general theory that all land tenure, except indeed the Dependent
tenure by which the king holds land in demesne, is dependent
tenure, seems to be implied, not only by many particular entries,
but also by the whole scheme of the book. Every holder of
land, except the king, holds it of (de) some lord, and therefore
every acre of land that is not royal demesne can be arranged
under the name of some tenant in chief. Even a church will
hold its land, if not of the king, then of some other lord 1 . The
terms of the tenure are but very rarely described, for Domesday
Book is no feodary. Just now and again a tenure in elemosina
is noticed and in some of these cases this term seems already
to bear the technical sense that it will have in later days ; the
tenant owes a spiritual, but no secular service 2 . A few in-
stances of what later lawyers would call a 'tenure by divine
service,' as distinct from a tenure in frank-almoin, may be
found 3 . A few words here and there betray the existence of
tenure by knight's service and of castle guard 4 . In the servi-
entes Regis who have been enfeoffed in divers counties we may
see the predecessors of the tenants by serjeanty 5 . We shall
remark, however, the absence of those abstract terms which are
to become the names of the various tenures. We read of
servientes, sochemanni, villani, burgenses, but not of seriantia 8 ,
socagium, villenagium, burgagium. As we pursue our retro-
gressive course through the middle ages, we do not find that
the law of personal condition becomes more and more distinct
from the law of land tenure ; on the contrary, the two become
less and less separable.
1 D. B. i. 91: 'Ecclesia Eomana beati Petri Apostoli tenet de Eege Peritone.'
Ib. 157 : ' Ecclesia Sancti Dyonisii Parish tenet de Eege Teigtone. Bex
Edwardus ei dedit.' Ib. 20 b: 'Abbas de Grestain tenet de Comite 2 hidas in
Bedingham. '
2 Hist. Eng. Law, i. 220.
3 D. B. i. 218 b : ' Rex vero Willelmus sibi postea in elemosina concessit,
unde pro anima Eegis et Eegine omni ebdomada 2 feria missam persolvit.'
D. B. ii. 133: ' et cantat unaquaque ebdomada tres missas.'
4 D. B. i. 3: ' reddit unum militem in servitio Arcbiepiscopi.' Ib. 10 b:
'servitium tmius militis.' Ib. 32: ' servitium unius militis. ' Ib. 151 b: 'in-
veniebat 2 loricatos in custodiam de Windesores. '
* Hist. Eug. Law, i. 268.
6 But D. B. i. 218 b gives us ' tenet in ministerio Eegis.'
152 Domesday Booh
Feudum. It has sometimes been said that a feudal tenure was the
only kind of land tenure that the Norman conquerors could
conceive. In a certain sense this may be true, but we should
have preferred to say that probably they could not easily
conceive a kind of tenure that was not dependent : every one
who holds land (except he be the king) holds it of someone else.
The adjective ' feudal ' was not in their vocabulary, and their
use of the word feudum occasionally we meet the older
feum 1 is exceedingly obscure. Very rarely does it denote a
tenure or a mass of rights; usually, though it may connote
rights of a certain order, it denotes a stretch of land ; thus we
may read of the fee of the Bishop of Bayeux, thereby being
meant the territory which the bishop holds. Occasionally,
however, we hear of a man holding land infeudo. One instance
may be enough to show that such a phrase did not imply
military tenure : ' William the Chamberlain held this manor
in feudo of the Queen [Matilda] at a rent of 3 a year and
after her death he held it in the same fashion of the king 2 .'
All sense of militariness, and all sense of precariousness, that
the word has ever had in its continental history, seems to be
disappearing. Already the process has begun which will make
it applicable to every person who has heritable rights in land.
William the Chamberlain is, we take it, already a fee farmer,
that is, a rent-paying tenant with heritable rights 3 . As to the
word beneficium, which feum or feudum has been supplanting,
we shall hardly find it with its old meaning. It seems to be
holding its own only within the sphere of ecclesiastical rights,
where the 'benefice' will survive until our own day 4 .
1 D. B. i. 4b: 'De terra huius manerii teuet Godefridus in feuo dimid.
solin.' Ib. 36 b: ' Humfridus Camerarius tenet de feuo Reginae Cumbe."
Ib. 336 b: 'Ipsam [domum] clamat Normannus Crassus de feuo Eegis.'
2 D. B. i. 129 b : ' Postea Willelmua Camerarius teuuit de Regina in feudo
pro 3 lib. per annum de firma, et post mortem Reginae eodem modo tenuit de
Rege.'
3 But, as in general a farmer would have no heritable rights, holding in fee
may be contrasted with holding in farm. D. B. i. 230 b: 'Has terras habet
Goduinus de Rege ad firmam, Dislea vero tenet de Rege in feudo.' So again it
may be contrasted with the husband's rights in his wife's marriage portion.
D. B. i. 214 b : ' De ista terra tenet Pirotus 3 hidas de maritagio suae feminae
et unam hidam et terciam partem unius hidae tenet in feudum de Nigello.'
4 D. B. i. 158: Robert de Ouilly holds forty-two houses in Oxford, some
meadow-land and a mill ' cum beneficio S. Petri,' i.e. together with the benefice
of S. Peter's church. Elsewhere, i. 273, we read that King William gave a
The Feudal Superstructure. 153
A yet more interesting and equally foreign word is not Alodium.
unfrequently used, namely, alodium. The Norman commis-
sioners deemed that a large number of English tenants in
Kent, Sussex, Surrey and Hampshire and some in Berkshire
had been alodiarii or aloarii and had held in alodium or sicut
alodium. The appearance of this term in one district and in
one only is far from proving that there had been anything
peculiar in the law of that district. It may well be a mere
chance that the liberi homines of other counties are not called
alodiaries. Still in Hampshire, where alodiaries abounded, it
was not every free man holding land who had an alod 1 .
Perhaps we shall be right in thinking that the term pointed to
heritability : the free man who holds land but has no alod has
only an estate for life. Certainly it does not mean that the
tenant has no lord. The alodiary may hold his alod ' of ' his
lord 2 ; he may owe service to his lord 3 ; he may pay a relief 4 ;
he may have no power 'to withdraw himself with his land' from
his lord 5 . The Norman lawyers had no speculative objection
to the existence of alodiaries ; it in no way contradicted such
doctrine of tenure as they had formed. In 1086 there were
still alodiaries in Berkshire 6 , and in royal charters of a much
later day there is talk of the alodiaries of Kent as of an existing
class 7 . It is just possible that William's commissioners saw
some difference between holding infeudo and holding in alodio.
manor to the monks of Burton ' pro beneficio suo ' j but the meaning of this is
by no means clear.
1 D. B. i. 44 b : ' Duo liberi homines tenuerunt de Alwino sed non fuit alod. 1
The same phrase occurs on f. 46.
2 D. B. i. 22 : ' Aluuard et Algar tenuerunt de Eege pro 2 maneriis in
alodia...iElueua tenuit de Kege Edwardo sicut alodium.' Ib. 26: ' Godwinus
Comes tenuit et de eo 7 aloarii.'
3 D. B. i. 60b: 'Duo alodiarii teuuerunt T. B. E....unus servivit Beginae,
alter Bundino.'
4 D. B. i. 1 : ' Quando moritur alodiarius, Bex inde habet relevationem
terrae.'
5 D. B. i. 52 b : ' Has hidas tenuerunt 7 alodiarii de Episcopo nee poterant
recedere alio vel ab illo.'
6 D. B. i. 63 b : ' Ibi sunt 5 alodiarii.'
7 See charter of John for St Augustin's, Canterbury, Bot. Cart. p. 105 :
' omnes allodiarios quos eis habemus datos.' This phrase seems to descend
through a series of charters from two charters of the Conqueror in which the
' swa fele J^egna swa ic heom togeleton habbe ' of the one appears in the other
as ' omnes allodiarios.' If so, we get from the Conqueror's own chancery the
equation J>egn = alodiarius. Hist. Mon. S. August. 349-50.
154 Domesday Book.
If ever they contrasted the two words, they may have hinted
that while the feudum has been given by the lord to the man,
the alodium has been brought by the man to the lord ; but we
can not be very certain that they ever opposed these terms to
each other 1 . Such sparse evidence as we can obtain from
Normandy strengthens our belief that the wide, the almost
insuperable, gulf that modern theorists have found or have set
between ' alodial ownership ' and ' feudal tenure ' was not per-
ceptible in the eleventh century 2 . It can be no part of our
task to trace the history of these terms alodium and feudum
behind the date at which they are brought into England, but
hereafter we shall see that here in England a process had been
at work which, had these terms been in use, would have
brought the alod very near to the feud, the feud very near to
the alod.
Appiica- It is probable that this process had gone somewhat further
formula* of m Normandy than in England. It is probable that the Nor-
temir<f eilt mans knew that in imposing upon all English lands ' the
formula of dependent tenure' they were simplifying matters.
They seem to think, and they may be pretty right in thinking,
that every English land-holder had held his land under (sub)
some lord ; but apparently they do not think that every
English land-holder had held his land of (de) some lord. Not
unfrequently they show that this is so. Thus one Sigar holds
a piece of Cambridgeshire of Geoffrey de Mandeville ; he used
to hold it under JSsgar the S taller 8 . We catch a slight shade
of difference between the two prepositions ; sub lays stress on
the lord's power, which may well be of a personal or justiciary,
rather than of a proprietary kind, while de imports a theory
about the origin of the tenure; it makes the tenant's rights look
like derivative rights: it is supposed that he gets his land from
1 D. B. i. 23: in two successive entries we have ' Offa tenuit de Episcopo in
feudo Almar tenuit de Goduino Comite in alodium.' So again, i. 59:
'Blacheman tenuit de Heraldo Comite in alodio...Blacheman tenuit in feudo
T. B. E.' The suggestion has heen made that alodium represents book-land ;
see Pollock, Land Laws, ed. 3. p. 27; Eng. Hist. Rev. xi. 227 ; but we gravely
doubt whether the humbler alodiarii had books. The author of the
Quadripartitus renders bocland by terra hereditaria, terra testiinentalis, terra
liliera, and even by feudum (Edg. n. 2); alodium occurs in the Instituta Cnuti.
After this we can hardly say for certain that D. B. does not use alodium and
feodum as equivalents, both representing a heritable estate, as absolute an
ownership of land as is conceivable.
2 Hist. Eng. Law, i. 46. 3 D. B. i. 197.
The Feudal Superstructure. 155
his lord. And at least in the eastern counties so it may well
have seemed to the Normans matters sadly needed simplifica-
tion. Even elsewhere and when a large estate is at stake they
can not always get an answer to the question ' Of whom was
this land holden 1 ? ' Still they thought that some of the
greatest men in the realm had held their lands, or some of
their lands, of the king or of someone else. The formulas
which are used throughout the description of Hampshire and
some other counties seem to assume that every holder of a
manor, at all events if a layman, had held it of the king, if he
did not hold it of another lord. Tenure in feudo again they
regarded as no innovation 2 . They saw the work of subinfeu-
dation : Brihtma?r held land of Azor and Azor of Harold ; we
may well suppose that Harold held it of the king and that
some villeins held part of it of Brihtma3r, and thus we see
already a feudal ladder with no less than five rungs 3 . They
saw that the thegns owed ' service ' to their lords 4 . They saw
the heriot ; they sometimes called it a relief 5 . We can not be
sure that this change of names imported any change in the
law ; when a burgess of Hereford died the king took a heriot,
but if he could not get the heriot he took the dead man's land 6 .
They saw that in certain cases an heir had to ' seek ' his
ancestor's lord if he wished to enjoy his ancestor's land 7 . They
saw that many a free man could not give or sell his land
without his lord's consent. They saw that great and powerful
men could not give or sell their land without the king's consent 8 .
1 D. B. i. 238 b : ' Eeliqnas autem 7 hidas et dimidiam tenuit [stc] Britnodus
et Aluui T. E. E., sed comitatus nescit de quo tenuerint.'
2 D. B. i. 23 : ' Offa tenuit de episcopo in feudo.' Ib. i. 59 b : ' Blacheman
tenuit in feudo T. K. E.'
s D. B. i. 28 b: 'Bricmar tenuit de Azor et Azor de Heraldo... Terra est 2
carucis. In dominio est una et 2 villani et 2 bordarii cum dimidia caruca.'
4 D. B. i. 75 b : ' De eadem terra ten[ent] 3 taiui 3 hidas et reddunt 3 libras
excepto servicio.' Ib. 86 b: ' Huic manerio est addita dimidia bida. Tres
taini tenebant T. E. E. et serviebant preposito manerii per consuetudinem
absque qjnni firma donante.'
6 D. B. i. 1 : 'Quando moritur alodiarius, Rex inde habet relevationem terrae.'
6 D. B. i. 179 : ' Burgensis cum caballo serviens, cum moriebatur, habebat
Eex equum et arma eius. De eo qui equum non habebat, si moreretur, habebat
Eex aut 10 solidos aut terrain eius cum domibus.'
7 D. B. i. 50 b : ' Alric tenet dimidiam hidam. Hanc tenuit pater eius de
Eege E. Sed hie Eegem non requisivit post mortem Godric sui avunculi qui
earn custodiebat. '
8 D. B. i. 238 b: 'Huic aecclesiae dedit Aluuinus vicecomes Cliptoue
156 Domesday Book.
Military They saw something very like military tenure. No matter
with which we have to deal is darker than the constitution of
the English army on the eve of its defeat. We may indeed
safely believe that no English king had ever relinquished the
right to call upon all the free men of his realm to resist an
invader. On the other hand, it seems quite clear that, as a
matter of fact, 'the host' was no longer 'the nation in arms.'
The common folk of a shire could hardly be got to fight outside
their shire, and ill-armed troops of peasants were now of little
avail. The only army upon which the king could habitually
rely was a small force. The city of Oxford sent but twenty
men or twenty pounds 1 : Leicester sent twelve men 2 : Warwick
sent ten 3 . In Berkshire the law was that, if the king called out
the host, one soldier (miles) should go for every five hides and
should receive from each hide four shillings as his stipend for
two months' service. If the man who was summoned made
default, he forfeited all his land to the king ; but there were
cases in which he might send one of his men as a substitute,
and for a default committed by his substitute he suffered no
forfeiture, but only a fine of fifty shillings 4 . It is probable that
a similar ' five hide rule ' obtained throughout a large part of
England. The borough of Wilton was bound to send twenty
shillings or one man ' as for an honour of five hides 5 .' When
an army or a fleet was called out, Exeter 'served to the amount
of five hides 6 .' All this points to a small force of well armed
concessu Eegis Edwardi et filiorum suorum pro anima sua.' Ib. 59 : ' De hoc
manerio scira attestatur, quod Edricus qui eum tenebat deliberavit ilium filio
BUO qui erat in Abendone monachus ut ad firmam illud teneret et sibi donee
viveret uecessaria vitae donaret; post mortem vero eius maneriurn haberet.
Et ideo nesciunt homines de scira quod abbatiae pertineat, neque enim inde
viderunt brevem Eegis vel sigillum. Abbas vero testatur quod in T. E. E. misit
ille manerium ad aecclesiam unde erat et inde habet brevem et sigillum E. E.'
1 D. B. i. 154 : ' Quando Eex ibat in expeditione, burgenses 20 ibant cum eo
pro omnibus aliis, vel 20 libras dabant Eegi ut omnes essent liberi.'
2 D. B. i. 230: 'Quando Eex ibat in exercitu per terram, de ipso burgo
12 burgenses ibant cum eo.'
3 D. B. i. 238: ' Consuetudo Waruuic fuit, ut eunte rege per terram in
expeditionem, deceni burgenses de Waruuic pro omnibus aliis irent.'
4 D. B. i. 57 b.
5 D. B. i. 64 b: 'Quando Eex ibat in expeditione vel terra vel mari, habebat
de hoc burgo aut 20 solidos ad pascendos suos buzecarlos, aut unum hominem
ducebat securn pro honore 5 hidarum.'
6 D. B. i. 100: 'Quando expeditio ibat per terram aut per mare serviebat
haec ci vitas quantum 5 hidae terrae.'
The Feudal Superstructure. 157
soldiers. For example, ' the five hide rule ' would be satisfied if
Worcestershire sent a contingent of 240 men. But not only
was the army small ; it was a territorial army ; it grew out of
the soil.
At first sight this ' five hide rule ' may seem to have in it The army
little that is akin to a feudal system of knights' fees. We may land,
suppose that it will work thus : The host is summoned ; the
number of hides in each hundred is known. To despatch a
company of soldiers proportioned to the number of the hides,
for example twenty warriors if the hundred contains just one
hundred hides, is the business of the hundred court and the
question ' Who must go ? ' will be answered by election, rotation
or lot. But it is not probable that the territorializing process
will stop here, and this for several reasons. An army that can
not be mobilized without the action of the hundred moots is
not a handy force. While the hundredors are deliberating the
Danes or Welshmen will be burning and slaying. Also a king
will not easily be content with the responsibility of a fluctuating
and indeterminate body of hundredors ; he will insist, if he can,
that there must be some one person answerable to him for each
unit of military power. A serviceable system will not have
been established until the country is divided into 'five-hide-
units/ until every man's holding is such an unit, or is composed
of several such units, or is an aliquot share of such an unit.
Then again the holdings with which the rule will have to deal
are not homogeneous; they are not all of one and the same
order. It is not as though to each plot of land there corre-
sponded some one person who was the only person interested in
it ; the occupiers of the soil have lords and again those lords
have lords. The king will insist, if he can, that the lords who
stand high in this scale must answer to him for the service that
is due from all the lands over which they exercise a dominion,
and then he will leave them free to settle, as between them-
selves and their dependants, the ultimate incidence of the
burden : thus room will be made for the play of free contract.
At all events when, as is not unusual, some lord is the lord of
a whole hundred and of its court, the king will regard him as
personally liable for the production of the whole contingent
that is due from that hundred. In this way a system will be
evolved which for many practical purposes will be indistinguish-
able from the system of knights' fees, and all this without any
158 Domesday Booh
help from the definitely feudal idea that military service is the
return which the tenant makes to the lord for the gift of land
that the lord has made to the tenant.
Feudalism That this process had already done much of its work when
service 1 . 117 the old English army received its last summons, we can not
doubt, though it is very possible that this work had been done
sporadically. We see that the land was being plotted out into
five-hide-units. In one passage the Norman clerks call such a
unit an honour, an ' honour of five hides 1 .' There is an old
theory based upon legal texts that such an honour qualifies
its lord or owner to be a thegn. If a ceorl prospers so that he
has five hides ' to the king's utware,' that is, an estate rated as
five hides for military purposes, he is worthy of a thegn's
wergild 2 . Then the Anglo-Saxon charters show us how the
kings have been endowing their thegns with tracts of territory
which are deemed to contain just five or some multiple of five
hides 3 . The thegn with five hides will have tenants below
him; but none of them need serve in the host if their lord
goes, as he ought to go, in person. Then each of these terri-
torial units continues to owe the same quantum of military
service, though the number of persons interested in it be
increased or diminished, and thus the ultimate incidence of
the duty becomes the subject-matter of private arrangements.
That is the point of a story from Lincolnshire which we have
already recounted : A man's land descends to his four sons ;
they divide it equally and agree to take turns in doing the
military service that is due from it ; but only the eldest of them
is to be the king's man 4 . Then we see that the great nobles
lead or send to the war all the milites that are due from the
lands over which they have a seignory. There are already
wide lands which owe military service we can not put it
otherwise to the bishop of Winchester as lord of Taunton :
they owe ' attendance in the host along with the men of the
bishop 5 .' The churches of Worcester and Evesham fell out
about certain lands at Hamton ; one of the disputed questions
1 Above, p. 156, note 5.
2 Schmid, App. vn. c. 2. 9-12; App. v; Pseudoleges Canuti (i.e. Instituta
Cnuti) 60, 61 (Schmid, p. 431).
3 Of this we shall speak in another Essay.
4 D. B. i. 375 b; above, p. 145.
5 D. B. i. 87 b: 'Istae consuetudiues pertinent ad Tantone profectio in
exercitum cum hominibus episcopi Hae duae terrae non debent exercitum.'
The Feudal Superstructure. 159
was whether or no Hamton ought to do its military service
'in the bishop's hundred of Oswaldslaw' or elsewhere 1 . This
question we take to be one of great importance to the bishop.
Lord of the triple hundred of Oswaldslaw, lord of three
hundred hides, he is bound to put sixty warriors into the field
and he is anxious that men who ought to be helping him to
make up this tale shall not be serving in another contingent.
But from Worcestershire we obtain a still more precious Default of
piece of information. The custom of that county is this :
When the king summons the host and his summons is dis-
regarded by one who is a lord with jurisdiction, ' by one who is
so free a man that he has sake and soke and can go with his
land where he pleases,' then all his lands are in the king's
mercy. But if the defaulter be the man of another lord and
the lord sends a substitute in his stead, then he, the defaulter,
must pay forty shillings to his lord, to his lord, not to the
king, for the king has had the service that was due ; but if the
lord does not send a substitute, then the forty shillings which
the defaulter pays to the lord, the lord must pay to the king 2 .
A feudalist of the straiter sort might well find fault with this
rule. He might object that the lord ought to forfeit his land,
not only if he himself fails to attend the host, but also if he
fails to bring with him his due tale of milites. Feudalism was
not perfected in a day. Still here we have the root of the
matter the lord is bound to bring into the field a certain
number of milites, perhaps one man from every five hides, and
if he can not bring those who are bound to follow him, he must
bring others or pay a fine. His man, on the other hand, is
bound to him and is not bound to the king. That man by
shirking his duty will commit no offence against the king.
The king is ceasing to care about the ultimate incidence of
the military burden, because he relies upon the responsibility
of the magnates. How this system worked in the eastern
counties where the power of the magnates was feebler, we can
1 See above, p. 85, note 3.
2 D. B. i. 172: 'Quando Rex in hostem pergit, si quis edictum eius vocatus
remanserit, si ita liber homo est ut habeat socam suam et sacam et cum terra
sua possit ire quo voluerit, de omni terra sua est in misericordia Regis.
Cuiuscumque vero alterius domini homo si de hoste remanserit et dominus ems
pro eo alium hominem duxerit, 40 sol. domino suo qui vocatus fuit emendabit.
Quod si ex toto nullus pro eo abierit, ipse quidem domino suo 40 sol. dabit,
dominus autern eius totidem solidis Eegi emendabit. 1
160 Domesday Book.
not tell. It is not improbable that one of the forces that is
attaching the small free proprietors to the manors of their lords
is this ' five hide rule ' ; they are being compelled to bring their
acres into five-hide-units, to club together under the superin-
tendence of a lord who will answer for them to the king, while
as to the villeins, so seldom have they fought that they are
ceasing to be ' fyrd- worthy 1 .' But in the west we have already
what in substance are knights' fees. The Bishop of Worcester
held 300 hides over which he had sake and soke and all
customs ; he was bound to put 60 milites into the field ; if he
failed in this duty he had to pay 40 shillings for each deficient
miles. At the beginning of Henry II.'s reign he was charged
with 60 knights' fees 2 .
The new We are not doubting that the Conqueror defined the
military .... .. ,, t />
service. amount or military service that was to be due to him from
each of his tenants in chief, nor are we suggesting that he paid
respect to the rule about the five hides, but it seems question-
able whether he introduced any very new principle. A new
theoretic element may come to the front, a contractual
element: the tenant in chief must bring up his knights
because that is the service that was stipulated for when he
received his land. But we cannot say that even this theory
was unfamiliar to the English. The rulers of the churches had
been giving or 'loaning' lands to thegns. In so doing they
had not been dissipating the wealth of the saints without
receiving some ' valuable consideration ' for the gift or the loan
(lain) ; they looked to their thegns for the military service that
their land owed to the king. To this point we must return
in our next essay ; but quite apart from definitely feudal
bargains between the king and his magnates, between the
magnates and their dependants, a definition of the duty of
military service which connects it with the ownership of land
(and to such a definition men will come so soon as the well-
armed few can defeat the ill-armed many) will naturally produce
a state of things which will be patient of, even if it will not
engender, a purely feudal explanation. If one of the men to
whom the Bishop of Worcester looks for military service makes
a default, the fine that is due from him will go to the bishop,
not to the king. Why so ? One explanation will be that the
bishop has over him a sake and soke of the very highest order,
1 See above, p. 77, note 1. 2 See Bound, Feudal England, 249.
T7ie Feudal Superstructure. 161
which comprehends even that fyrd-wite, that fine for the
neglect of military duty, which is one of the usually reserved
pleas of the crown 1 . Another explanation will be that this man
has broken a contract that he made with the bishop and
therefore owes amends to the bishop : to the bishop, not to
the king, who was no party to the contract. Sometimes the
one explanation will be the truer, sometimes the other. Some-
times both will be true enough. As a matter of fact, we believe
that these men of the Bishop of Worcester or their predecessors
in title have solemnly promised to do whatever service the
king demands from the bishop 2 . Still we can hardly doubt
which of the two explanations is the older, and, if we attribute
to the Norman invaders, as perhaps we may, a definite appre-
hension of the theory that knight's service is the outcome of
feudal compacts, this still leaves open the inquiry whether the
past history of military service in Frankland had not been very
like the past history of military service in England. Already
in the days of Charles the Great the duty of fighting the
Emperor's battles was being bound up with the tenure of land
by the operation of a rule very similar to that of which
we have been speaking. The owner of three (at a later time
of four) manses was to serve ; men who held but a manse apiece
were to group themselves together to supply soldiers. Then at
a later time the feudal theory of free contract was brought in
to explain an already existing state of things 3 .
Closely connected with this matter is another thorny topic, The
namely, the status of the thegn and the relation of the thegn to thegns -
his lord. In the Confessor's day many maneria had been held
by thegns; some of them were still holding their lands when
the survey was made and were still called thegns. The king's
1 D. B. i. 208 : ' Testantur homines de comitatu quod Rex Edwardus dedit
Suineshefet Siuuardo Comiti soccam et sacam, et sic habuit Haroldus comes,
praeter quod geldabant in hundredo et in hostem cum eis ibant.' It is here
noted that though Harold had sake and soke over Swineshead, it paid its geld
and did its military duty in the hundred. Our record would hardly mention such
a point unless very often the exaction of geld and military service was one of
the rights and duties of the lord who had sake and soke.
2 In the next chapter we shall speak of the bishop's land-loans.
3 See the capitularies of 807 and 808 (ed. Boretius, pp. 134, 137). Also,
Fustel de Coulauges, Les transformations de la royaute, 515 ff. It may well be
doubted whether the five-hide rule had not been borrowed by English kings
from their Frankish neighbours. Stubbs, Const. Hist. i. 208 ff.
M. 11
162 Domesday Book.
thegns were numerous, but the queen also had thegns, the
earls had thegns, the churches had thegns and we find thegns
ascribed to men who were neither earls nor prelates but
themselves were thegns 1 . Many of the king's thegns were able
to give or sell the lands that they held, ' to go to whatever lord
they pleased 2 .' On the other hand, many of the thegns of the
churches held lands which they could not ' withdraw ' from the
churches 3 ; in other words 'the thegn-lands' of the church could
not be separated from the church 4 . The Conqueror respected
the bond that tied them to the church. The Abbot of Ely
complained to him that the foreigners had been abstracting the
lands of S l . Etheldreda. His answer was that her demesne
manors must at once be given back to her, while as for the men
who have occupied her thegnlands, they must either make their
peace with the abbot or surrender their holdings 5 . Thus the
abbot seems to have had the benefit of that forfeiture which his
thegns incurred by espousing the cause of Harold. We see
therefore that the relation between thegn, lord and laud varied
from case to case. The land might have proceeded from the
lord and be held of the lord by the thegn as a perpetually
inheritable estate, or as an estate granted to him for life, or
granted to him and two successive heirs 6 ; on the other hand,
the lord's hold over the land might be slight and the bond
between thegn and lord might be a mere commendation which
the thegn could at any time dissolve. Again, the relation
between thegn and lord is no longer conceived as a menial,
'serviential' or ministerial relation. The Taini Regis are
1 D. B. i. 152 b: 'duo teigni homines Alrici filii Goding.' Ib. 'Hoc
mauerium tenuit Azor filius Toti teignus Regis Edwardi et alter teignus homo
eius tenuit unam hidam et venders potuit.'
2 D. B. i. 84 b: at the end of a list of royal thegns ' nines qui has terras
T. R. E. tenebant, poterant ire ad quern dominum volebant.'
3 D. B. i. 41: ' Tres taini tenuerunt de episcopo et non potuerunt ire
quolibet.'
4 D. B. i. 91 : ' Hae terrae erant tainland in Glastiugberie T. R. E. nee
poterant ab aecclesia separari.'
5 Hamilton, Inquisitio, pp. xviii. xix.
6 D. B. i. 66 b : ' De hac eadem terra 3 hidas vendiderat abbas cuidam taino
T. R. E. ad aetatem trium hominum, et ipse abbas habebat inde servitium, et
postea debet redire ad dominiuni.' Ib. i. 83 b: 'Ipsa femina tenet 2 hidas in
Tatentone quae erant de dominio abbatiae de Cernel; T. R. E. duo teini
tenebant prestito.'
The Feudal Superstructure. 163
often contrasted with the Servientes Regis 1 . The one trait
of thegnship which comes out clearly on the face of our
record is that the thegn is a man of war 2 . But even this trait
is obscured by language which seems to show that there has
been a great redistribution of military service. Though there
is no Latin word that will translate thegn except miles, though
these two terms are never contrasted with each other, and
though there are thegns still existing, still of these two terms
one belongs to the old, the other to the new order of things 3 .
Thus thegnship is already becoming antiquated and we are left
to guess from older dooms and later Leges what was its essence
in the days of King Edward.
The task is difficult for we can see that this institution has Nature
undergone many changes in the course of a long history and sh
yet can not tell how much has remained unchanged. We begin
by thinking of thegnship as a relation between two men. The
thegn is somebody's thegn. The household of the great man,
but more especially the king's household, is the cradle of
thegnship. The king's thegns are his free servants servants
but also companions. In peace they have duties to perform
about his court and about his person ; they are his body-guard
in war. Then the king and other great lords follow his
example begins to give lands to his thegns, and thus the
nature of the thegnship is modified. The thegn no longer lives
in his lord's court ; he is a warrior endowed with land. Then
the thegnship becomes more than a relationship, it becomes a
status. The thegn is a ' twelve hundred man ' ; his wergild
and his oath countervail those of six ceorls. This status
seems to be hereditary; the thegn 's sous are 'dearer born*
than are the sons of the ceorl 4 . But we can not tell how far
1 D. B. i. 64 b: 'Herman et alii servientes Regis. ..Odo et alii taini Eegis ..
Herueus et alii ministri Eegis.' Ib. 75: ' Guddmund et alii taini... Willelmus
Belet et alii servientes Eegis. 1
2 D. B. i. 56 b (Berkshire custom) : ' Tainus vel miles Eegis dominicus
moriens, pro relevamento dimittebat Eegi omnia anna sua et equum unum cum
Bella, alium sine sella.'
3 D. B. i. 83: ' Bricsi tenuit miles Eegis E.' Such entries are rare.
D. B. i. 66: ' De eadem terra huius manerii tenfent] duo Angli....Unus ex eia
est miles iussu Eegis et nepos fuit Hermanni episcopi.' Here the king compels
an Englishman to become a miles. D. B. i. 180b: 'Quinque taini... habebant
sub se 4 milites.' The warrior was not necessarily of theguly rank.
4 See the passages collected by Schmid, Gesetze, p. 667.
112
164 Domesday Booh
this principle is carried. We can not easily reconcile this
hereditary transmission of thegn-right with the original
principle that thegnship is a relation between two men. We
may have thegns who are nobody's thegns, or else we may
have persons entitled to the thegnly wergild who yet are not
thegns. What is more, since the law which regulates the
inheritance of land does not favour the first-born, we may have
poor thegns and landless thegns. Yet another principle comes
into play. A duty of finding well armed warriors for the host
is being territorialized ; every five hides should find a soldier.
The thegn from of old has to attend the host with adequate
equipment ; the men who under the new system have to attend
the host with horse and heavy armour are usually thegns. Then
the man who has five hides, and who therefore ought to put a
warrior into the field, is a thegn or is entitled to be a thegn.
The ceorl obtains the thegnly wergild if he has an estate rated
for military purposes at five hides. Another version of this
tradition requires of the ceorl who ' thrives to thegn-right ' five
hides of his own land, a church, a kitchen, a house in the burh,
a special office in the king's hall. To be 'worthy of thegn-right'
may be one thing, to be a thegn, another. To be a thegn one
must be some one's thegn. The prosperous ceorl will be no
thegn until he has put himself under some lord. But the bond
between him and his lord may be dissoluble at will and
may hardly affect his land. It is, we repeat, very difficult
to discover how these various principles were working together,
checking and controlling each other in the first half of the
eleventh century. Several inconsistent elements seem to be
blended. There is the element of hereditary caste : the thegn
transmits thegnly blood to his offspring. There is the element
of personal relationship : he is the thegn of some lord and owes
fealty to that lord. There is the military element : he is a
warrior who has horse and heavy armour and is bound to fight
the nation's battles. Connected with this last there is the
proprietary element: each five hides must send a warrior to
the host ; the man with five hides is entitled to become,
perhaps he may be compelled to become a thegn, a warrior 1 .
1 In their treatment of the thegnship of the last days before the Conquest,
Maurer lays stress upon the proprietary element, Schmid upon the hereditary.
See Little, Gesiths and Thegns, E. H. B. iv. 723.
The Feudal Superstructure. 165
On the whole, we gather from Domesday Book that the The thegns
military element is subduing the others. The thegn is the man day.
who for one reason or another is a warrior. For one reason or
another, we say ; for the class of thegns is by no means homo-
geneous. On the one hand, we see the thegns of the churches,
who have been endowed by the prelates in order that they
may do the military service due from the ecclesiastical lands.
Many of the prelates have thegns, and for the creation of
thegnlands by the churches it would not be easy to find any
explanation save that which we have already found in the
territorialization of military service. The thegn might pay
some annual ' recognition ' to the church, he might send his
labourers to help his lord for a day or two at harvest time;
but we may be sure that he was not rack-rented and that, if
military service be left out of account, the church was a loser
by endowing him. Here the land proceeds from the lord to the
thegn ; the thegn can not give or sell it ; the holder of that land
can have no lord but the church ; if he forfeits the land, he
forfeits it to the church. But, on the other hand, we see
numerous king's thegns who are able ' to go to what lord they
please.' We may see in them landed proprietors who by the
play of ' the five hide rule ' have become bound to serve as
warriors. We may be fairly certain that they have not been
endowed by the king, otherwise they would not enjoy the
liberty, that marvellous liberty, of leaving him, of putting
themselves under the protection and the banner of some earl
or some prelate. Not that every thegn will (if we may borrow
phrases from a later age) possess a full ' thegn's fee ' or owe the
service of a whole warrior. Large groups of thegns we may see
who obviously are brothers or cousins enjoying in undivided
shares the inheritance of some dead ancestor. They may take
it in turns to go to the war ; the king may hold the eldest of
them responsible for all the service ; but each of them will be
called a thegn, will be entitled to a thegnly wergild and swear
a thegnly oath. Still, on the whole, the thegn of Domesday
Book is a warrior, and he holds though perhaps along with his
coparceners land that is bound to supply a warrior.
In the main all thegns seem to have the same legal status, Greater
though they may not be all of equal rank. All of them seem thegns.
to have the wergild of twelve hundred shillings. A law of Cnut,
after describing the heriot of the earl, distinguishes two classes
166 Domesday Booh
of thegns ; there is ' the king's thegn who is nighest to him '
arid whose heriot includes four horses and 50 mancuses of
gold, and 'the middle thegn' or 'less thegn' from whom he gets
but one horse and one set of arms or 2. x This law should
we think be read in connexion with the rule that is recorded
by Domesday Book as prevailing in the shires of Derby and
Nottingham : the thegn who had fewer than seven manors
paid a relief of 3 marks to the sheriff, while he who had
seven and upwards paid 8 to the king 2 . A rude line is
drawn between the richer and the poorer thegns of the
king. The former deal immediately with the king and pay
their reliefs directly to him ; the latter are under the sheriff
and their reliefs are comprised in his farm. Thus the wealthy
thegns, like the barones maiores of later days, are ' nigher to '
the king than are the ' less-thegns ' or those barones minores
who in a certain sense are their successors.
The great The kings, the earls and the churches have of course many
demesne manors. Of the ecclesiastical estates we shall speak
in our next essay, for they can be best examined in the
light that is cast upon them by the Anglo-Saxon charters.
Here we will merely observe that some of the churches have
not only large, but well compacted territories. The abbey of
S l . Etheldreda, for example, besides having outlying manors,
holds the two hundreds which make up the isle of Ely; her
property in Cambridgeshire is valued at 3 18 s . The earls
also are rich in demesne manors and so is the king.
The king as King William is much richer than King Edward was. The
Conqueror has been chary in appointing earls and consequently
he has in his hand, not only the royal manors, but also a
great many comital manors, to say nothing of some other
estates which, for one reason or another, he has kept to himself.
Edward had been rich, but when compared with his earls he
had not been extravagantly rich. In Somersetshire, for ex-
ample, there were twelve royal manors which may have brought
in a revenue of 500 or thereabouts, while there were fifteen
comital manors which were worth nearly 300*. The royal
demesne had been a scattered territory; the king had some-
thing in most shires, but was far richer in some than in others.
1 Cnut, ii. 71. 2 D. B. i. 280 b.
3 Hamilton, Inquisitio, 121. 4 Eyton, Somerset, i. 84.
TJie Feudal Superstructure. 167
It was not so much in the number of his manors as in their
size and value that he excelled the richest of his subjects.
Somehow or another he had acquired many of those vills
which were to be the smaller boroughs and the market towns
of later days. We may well suppose that from of old the
vills that a king would wish to get and to keep would be
the nourishing vills, but again we can not doubt that many
a vill has prospered because it was the king's.
Among the manors which William holds in the south-west The
a distinction is drawn by the Exeter Domesday. The manors demesne,
which the Confessor held are 'The King's Demesne which
belongs to the kingdom,' while those which were held
by the house of Godwin are the 'Comital Manors 1 .' So in
East Anglia certain manors are distinguished as pertaining
or having pertained to the kingdom or kingship, the regnum
or regio*. This does not seem to have implied that they were
inalienably annexed to the crown, for King Edward had given
some of them away. Neither when it speaks of the time of
William, nor when it speaks of the time of Edward, does our
record draw any clear line between those manors which the
king holds as king and those which he holds in his private
capacity, though it may just hint that certain ancient estates
ought not to be alienated. The degree in which the various
manors of the crown stood outside the national system of
finance, justice and police we can not accurately ascertain.
Some, but by no means all, pay no geld. Of some it is
said that they have never paid geld. Perhaps in these
ingeldable manors we may see those which constituted
the royal demesne of the West Saxon kings at some
remote date. Of the king's vill of Gomshall in Surrey it is
written : ' the villeins of this vill were free from all the affairs
of the sheriff 3 ,' as though it were no general truth that with
a royal manor the sheriff had nothing to do.
1 D. B. iv. 75: ' Domiuicatus Begis ad Regnum pertinens in Devenescira.'
Ib. 99 : ' Mansiones de Comitatu.' Eyton, Somerset, i. 78.
2 D. B. ii. 119 : ' Hoc manerium fuit de regno, sed Rex Edwardus dedit
Radulfo Comiti.' Ib. 144: ' Suafham pertinuit ad regionem et Rex E. dedit R.
Corniti.' Ib. 281 b: 'Terra Regis de Regione quam Rogerus Bigotus servat.'
Ib. 408 b : ' Tornei manerium Regis de regione.' Mr Round, Feudal England,
p. 140, treats regio as a mere blunder; but it may well stand for kingship.
3 D. B. i. 30 b: 'Huius villae villani ab omni re vicecom[itis] sunt quieti."
168 Domesday Book.
The comi- As with the estates of the king, so with the estates of
8 ' the earls, we find it impossible to distinguish between private
property and official property. Certain manors are regarded
as the ' manors of the shire ' (matisiones de comitatu, 1 ) ; certain
vills are ' comital vills V they belong to ' the consulate 3 .' He-
reditary right tempered by outlawry was fast becoming the
title by which the earldoms were holden. The position of the
house of Leofric in Mercia was far from being as strong as the
position of the house of Rolf in Normandy, and yet we may
be sure that King Harold would not have been able to treat
the sons of ^Elfgar as removable officers. But one of the best
marked features of Domesday Book, a feature displayed on
page after page, the enormous wealth of the house of Godwin,
seems only explicable by the supposition that the earlships
and the older ealdormanships had carried with them a title
to the enjoyment of wide lands. That enormous wealth had
been acquired within a marvellously short time. Godwin was
a new man : nothing certain is known of his ancestry. His
daughter's marriage with the king will account for something ;
Harold's marriage with the daughter of u^lfgar will account
for something, for instance, for manors which Harold held in
the middle of ^Elfgar's country 4 ; and a great deal of simple
rapacity is laid to the charge of Harold by jurors whose testi-
mony is not to be lightly rejected 5 ; but the greater part of the
land ascribed to Godwin, his widow and his sons, seems to
consist of comitales villae.
Private The wealth of the earls is a matter of great importance. If
govern* 11 we subtract the estates of the king, the estates of the earls, and
revenues *^ e estates of the churches and, as we shall see hereafter, the
churches had obtained the bulk of their wealth directly from
1 D. B. iv. 99.
2 Pseudoleges Canuti ( = Liebermanu's Instituta Cnuti), 55 (Schmid, p. 430):
'Comitis rectitudines secundum Anglos istae sunt communes cum rege: tertius
denaiius in villis ubi mercatum convenerit, et in castigatione latronum, et
comitales villae, quae ad comitatum eius pertinent.'
3 D. B. ii. 118 b: ' Terre Regis in Tetford...est una leugata terre in longa et
dim. in lato de qua Rex habet duas partes: de his autem duabus partibus tercia
pars in consulatu iacet.' But this seems to mean that only this part of the land
w in the county of Norfolk. Ibid. i. 246 : in Stafford the king has twenty-two
houses ' de honore comitum.' * D. B. i. 246.
5 Ellis, Introduction, i. 313. When twenty years after Harold's death a
question about the title to land is at issue, there seems no reason why the jurors
should tell lies about Harold.
TJie Feudal Superstructure. 169
the kings, if we subtract again the lands which the king, the
earls, the churches have granted to their thegns, the England
of 1065 will not appear to us a land of very great landowners,
and we may obtain a valuable hint as to one of the origins of
feudalism. A vast amount of land is or has recently been held
by office-holders, by the holders of the kingship, the earlships,
or the ealdormanships. We seem to see their proprietary rights
arising in the sphere of public law, growing out of governmental
rights, which however themselves are conceived as being in
some sort proprietary. Many a passage in Domesday Book
will suggest to us that a right to take tribute and a right to
take the profits of justice have helped to give the king and the
earls their manors and their seignories. Even in his own
demesne manors the king is apt to appear rather as a tribute
taker than as a landowner. Manors of very unequal size and
value have had to supply him with equal quantities of victuals;
each has to give ' a night's farm ' once a year. Then from the
counties at large he has taken a tribute ; from Oxfordshire, for
example, 10 for a hawk, 20 shillings for a sumpter horse, 23
for dogs and 6 sesters of honey 1 ; from Worcestershire 10 or a
Norway hawk, 20 shillings for a sumpter horse 2 ; from War-
wickshire 23 for ' the dog's custom,' 20 shillings for a sumpter
horse, 10 for a hawk and 24 sesters of honey 3 . The farm of
the county that the sheriff pays is made up out of obscure old
items of this sort. Many men who are not the king's tenants
must assist him in his hunting, must help in the erection of
his deer-hays 4 . Then there are the avera and the inwards that
are exacted by the king or his sheriff from sokemen who are
not the king's men. The sheriff also is entitled to provender
rents ; out of ' the revenues which belong to the shrievalty ' of
Wiltshire, Edward of Salisbury gets pigs, wheat, barley, oats,
honey, poultry, eggs, cheeses, lambs and fleeces ; and besides
this he seems to have ' reveland ' which belongs to him as
sheriff 5 . Then we see curious payments in money and renders
1 D. B. i. 154 b. 2 D. B. i. 172. 3 D. B. i. 238.
4 D. B. i. 56 b: Berkshire custom, ' Qui monitus ad stabilitionem venationis
non ibat 50 sol. Regi emendabat.' See also the Hereford custom, Ib. 179 ; also
Rectitudines (Schmid, App. III.) c. 1.
5 D. B. i. 69. But the meaning of reveland is obscure. The most
important passages about it are in D. B. i. 57 b (Eseldeborne), 181 (Getune).
D. B. i. 83 : ' Hanc tenet Aiulf de Rege quaindiu erit vicecomes.'
170 Domesday Booh
in kind made to some royal or some comital manor by the
holders of other manors. In Devonshire, Charlton which belongs
to the Bishop of Coutances, Honiton which belongs to the
Count of Mortain, Smaurige which belongs to Ralph de
Pornerai, Membury which belongs to William Chevre, Roverige
which belongs to S f . Mary of Rouen, each of these manors used
to pay twenty pence a year to the royal manor of Axminster 1 .
In Somersetshire there are manors which have owed consuetu-
dines, masses of iron and sheep and lambs to the royal manors
of South Perrott and Cury, or the comital manors of Crevvkerne
and Dulverton 2 . Then again, we find that pasture rights are
connected with justiciary rights: Godwin had a manor in
Hampshire to which belonged the third penny of six hun-
dreds, and in all the woods of those six hundreds he had free
pasture and pannage 3 ; the third penny of three hundreds in
Devonshire and the third animal of the moorland pastures were
annexed to the manor of Holland 4 . Many things seem to
indicate that the distinction between private rights and govern-
mental powers has been but faintly perceived in the past.
The If now we look at that English state which is the outcome
f a purely English history, we see that it has already taken a
pyramidal or conical shape. It is a society of lords and men.
At its base are the cultivators of the soil, at its apex is the
king. This cone is as yet but low. Even at the end of
William's reign the peasant seldom had more than two lords
between him and the king, but already in the Confessor's reign
he might well have three 5 . Also the cone is obtuse : the angle
at its apex will grow acuter under Norman rulers. We can
indeed obtain no accurate statistics, but the number of land-
holders who were King Edward's men must have been much
larger than the tale of the Norman tenants in chief. In the
geographical distribution of the large estates under William
there is but little more regularity than there was under his
predecessor. In Cheshire and in Shropshire the Conqueror
1 D. B. i. 100.
2 D. B. i. 86, 86 b, 92, 97; so in Devonshire, 117 b: 'Hoc manerium debet
per consuetudinem in Tavetone manerium Eegis aut 1 bovem aut 30 denanos.'
3 D. B. i. 38 b.
4 D. B. i. 101 : ' Ipsi manerio pertinet tercius denarius de hundredis
Nortmoltone et Badentone et Brantone et tercium animal pasturae morarum.'
6 Above, p. 155.
The Feudal Superstructure. 171
formed two great fiefs for Hugh of Avranches and Roger of
Montgomery, well compacted fiefs, the like of which England
had not yet seen. But the units which William found in
existence and which he distributed among his followers were
for the more part discrete units, and seldom did the Norman
baron acquire as his honour any wide stretch of continuous
territory. Still a great change took place in the substance of
the cone, or if that substance is made up of lords and men
and acres, then in the nature of, or rather the relation between,
the forces which held the atoms together. Every change
makes for symmetry, simplicity, consolidation. Some of these
changes will seem to us predestined. To speculate as to what
would have happened had Harold repelled the invader would
be vain, and certainly we have no reason for believing that in
that case the formula of dependent tenure would ever have got
hold of every acre of English land and every right in English
land. The law of ' land loans ' (Lehnrecht) would hardly have
become our only land law, had not a conqueror enjoyed an
unbounded power, or a power bounded only by some reverence
for the churches, of deciding by what men and on what
terms every rood of England should be holden. Had it
not been for this, we should surely have had some franc
alien to oppose to the fief, some Eigen to oppose to the Lehn.
But if England was not to be for ever a prey to rebellions and
civil wars, the power of the lords over their men must have
been not indeed increased, but territorialized ; the liberty of
' going with one's land to whatever lord one chose ' must have
been curtailed. As yet the central force embodied in the
kingship was too feeble to deal directly with every one of its
subjects, to govern them and protect them. The intermedia-
tion of the lords was necessary; the state could not but be
pyramidal ; and, while this was so, the freedom that men had of
forsaking one lord for another, of forsaking even the king for
the ambitious earl, was a freedom that was akin to anarchy.
Such a liberty must have its wings dipt ; free contract must
be taught to know its place ; the lord's hold over the man's
land must become permanent. This change, if it makes at
first for a more definite feudalism, or (to use words more
strictly) if it substitutes feudalism for vassalism, makes also for
the stability of the state, for the increase of the state's power
over the individual, and in the end for the disappearance of
172 Domesday Book.
feudalism. The freeholder of the thirteenth century is much
more like the subject of a modern state than was the free man
of the Confessor's day who could place himself and his land
under the power and warranty of whatever lord he chose.
Lordship in becoming landlordship begins to lose its most
dangerous element; it is ceasing to be a religion, it is be-
coming a ' real ' right, a matter for private law. Again, we
may guess, if we please, that but for the Norman Conquest
the mass of the English peasantry would never have fallen so
low as fall it did. The 'sokemen' would hardly have been
turned into 'villeins,' the 'villeins' would hardly have become
' serfs.' And yet the villeins of the Confessor's time were in a
perilous position. Already they were occupying lands which
for two most important purposes were reckoned the lands of
their lords, lands for which their lords gelded, lands for which
their lords fought. Even in an English England the time
might have come when the state, refusing to look behind their
lords, would have left the protection of their rights to a Hof-
recht, to ' the custom of the manor.'
Last It is, we repeat it, vain to speculate about such matters, for
we know too little of the relative strength of the various forces
that were at work, and an accident, a war, a famine, may at
any moment decide the fate, even the legal fate, of a great
class. And above all there is the unanswerable question
whether Harold or any near successor of his would or could
have done what William did so soon as the survey was accom-
plished, when he proved that, after all, the pyramid was no
pyramid and that every particle of it was in immediate contact
with him, and ' there came to him all the land-sitting men
who were worth aught from over all England, whosesoever men
they were, and they bowed themselves to him, and became this
man's men 1 .'
9. The Boroughs,
Dark as the history of our villages may be. the history
a;id vill?ge. J J
of the boroughs is darker yet ; or rather, perhaps, the darkness
seems blacker because we are compelled to suppose that it
conceals from our view changes more rapid and intricate than
1 Chron. ann. 1085.
The Boroughs. 173
those that have happened in the open country. The few
paragraphs that follow will be devoted mainly to the develop-
ment of one suggestion which has come to us from foreign
books, but which may throw a little light where every feeble
ray is useful. At completeness we must not aim, and in
our first words we ought to protest that no general theory
will tell the story of every or any particular town 1 .
In the thirteenth century a legal, though a wavering, line The bor-
is drawn between the borough and the mere vill or rural cent. xiii.
township 2 . It is a wavering line, for stress can be laid now
upon one and now upon another attribute of the ancient and
indubitable boroughs, and this selected attribute can then
be employed as a test for the claims of other towns. When
in Edward I.'s day the sheriffs are being told to bid every
borough send two burgesses to the king's parliaments, there
are somewhat more than 150 places to which such summonses
will at times be addressed, though before the end of the
middle ages the number of ' parliamentary boroughs ' will
have shrunk to 100 or thereabouts 3 . Many towns seem to
hover on the border line and in some cases the sheriff has
been able to decide whether or no a town shall be represented
in the councils of the realm. Yet if we go back to the early
years of the tenth century, we shall still find this contrast
between the borough and the mere township existing as
a contrast whence legal consequences flow. Where lies the
contrast ? What is it that makes a borough to be a borough ?
That is the problem that we desire to solve. It is a legal
problem. We are not to ask why some places are thickly
populated or why trade has flowed in this or that channel.
We are to ask why certain vills are severed from other vills
and are called boroughs.
We may reasonably wish, however, since mental pictures The num-
must be painted, to know at the outset whereabouts the line boroughs.
1 A sketch of the principal argument of this section was published in Eng.
Hist. Kev., xi. 13, as a review of Keutgen's Untersuchungen iiber den Ursprung
der deutschen Stadtverfassung. The origin of the French and German towns
has become the theme of a large and very interesting literature. A good
introduction to this will be found in an article by M. Pirenne, L'origine des
constitutions urbaines, Kevue historique, liii. 52, Ivii. 293, and an article by
Mr Ashley, Quarterly Journal of Economics, vol. x. July, 1896. The continuous
survival of Koman municipal institutions even in Gaul seems to be denied by
almost all modern students.
2 Hist. Eng. Law, i. 625. 3 Stubbs, Const. Hist. iii. 448.
174 Domesday Book.
will be drawn, and whether when we are speaking of the
Conqueror's reign and earlier times we shall have a large or
a small number of boroughs on our hands. Will it be a
hundred and fifty, or a hundred, or will it be only fifty ? At
once we will say that some fifty boroughs stand out prominently
and will demand our best attention, though a second and far
less important class was already being formed.
The aid- In the middle of the twelfth century the Exchequer was
boroughs of treating certain places in an exceptional fashion. It was sub-
cent, xn. j ec ti n g them to a special tax in the form of an auxilium or
donum. This fact we may take as the starting point for our
researches. Now if we read the unique Pipe Roll of Henry
I 's reign and the earliest Pipe Rolls of Henry II.'s we observe
that an ' aid ' or a ' gift ' is from time to time collected from the
' cities and boroughs/ and if we put down the names of the towns
which are charged with this impost, we obtain a remarkable
result 1 . Speaking broadly we may say that the only towns
which pay are ' county towns.' For a large part of England
this is strictly true. We will follow the order of Domesday
Book, beginning however with its second zone. If London is
in Middlesex 2 , it is Middlesex's one borough. In Hertfordshire
is Hertford. In Buckinghamshire is Buckingham, but no
aid can be expected from it. In Oxfordshire is Oxford. In
Gloucestershire is Gloucester, but Winchcombe also asserts
its burghal rank. In Worcestershire is Worcester, while Droit-
wich appears occasionally with a small gift. Hereford is the
one borough of Herefordshire. Turning to the third zone, we
pass rapidly through Cambridgeshire, Huntingdonshire, Bed-
fordshire and Northamptonshire ; each has its borough. This
will be true of Leicestershire also; but Leicester is by this
time so completely in the hands of its earl that the king gets
nothing from it. Nor, it would seem, does he get anything
from Warwick. Half in Warwickshire, half in Staffordshire
lies Tamworth ; Stafford also pays. At times Bridgenorth
appears beside Shrewsbury. Nothing is received from Chester,
for it is the head of a palatinate. Derby, Nottingham and
York are the only representatives of their shires. Lincolnshire
1 We must exclude cases in which the king takes an aid from his whole
demesne, e.g. for his daughter's marriage, for in such a case many royal manors
which have no right to be called boroughs must make a gift.
- Eound, Geoffrey de Mandeville, 347, has excellent remarks on this point.
TJie Boroughs.
175
has Stamford on its border as well as Lincoln in its centre.
Norfolk has Thetford as well as Norwich ; but Suffolk has
only Ipswich and Essex only Colchester.
In the southern zone matters are not so simple. Kent Aid-paying
contains Canterbury and Rochester ; Surrey contains Guildford in the
and Southwark ; Sussex only Chichester. Hampshire has s
Winchester ; Southampton is receiving special treatment. Wal-
lingford represents Berkshire. When we get to Wiltshire
and Dorset we are in the classical land of small boroughs.
There are various little towns whose fate is in the balance ;
Marlborough and Calne seem for the moment to be the most
prominent. In Somersetshire, whatever may have been true
in the past, Ilchester is standing out as the one borough that
pays an aid. Exeter has now no second in Devonshire. If there
is a borough in Cornwall, it makes no gift to the king.
We may obtain some notion of the relative rank of these Listofaids.
towns if we set forth the amounts with which they are charged
in 1130 and in 1156, though the materials for this comparison
are unfortunately incomplete.
Pipe Roll
Pipe Roll
Pipe Roll
Pipe Roll
31 Hen. I
2Heu.II
31 Hen. I
2 Hen. 11
London
120
120
Wiltshire boroughs 17
Winchester
80
Calne
1
Lincoln
60
60
Dorset boroughs
15
York
40
40
Huntingdon
8
8
Norwich
30
33J
Ipswich
7
J
Exeter
20
Guildford
5
5
Canterbury
20
13J
Southwark
5
5
Colchester
ao
12* 1
Hertford
5
Oxford
20
20
Stamford
5
Gloucester
15
15
Bedford
5
n
Wallingford
15
Shrewsbury
5
Worcester
15
Droitwich
5
Cambridge
12
12
Stafford
3}
3J
Hereford
10
Winchcombe
3
5
Thetford
10
Tamworth
22
u 2
Northampton
10
Ilchester
2*
Rochester
10
Chichester 3
Nottingham )
15
15
"Derby )
1 Nearly.
2 This may come only from the Staffordshire part of Tamworth.
3 Chichester pays in later years; but very little.
176 Domesday Booh
Value of Now we are not putting this forward as a list of those
the list.
English towns that were the most prosperous in the middle of
the twelfth century. We have made no mention of flourishing
seaports, of Dover, Hastings, Bristol, Yarmouth. Nor is this a
list of all the places that are casually called burgi on rolls of
Henry II.'s reign. That name is given to Scarborough, Knares-
borough, Tickhill, Cirencester and various other towns. New
tests of 'burgality* (if we may make that word) are emerging
and old tests are becoming obsolete. We see too that some
towns are dropping out of the list of aid-paying boroughs. In
1130 Wallingford has thrice failed to pay its aid of 15 and the
whole debt of 45 must be forgiven to the burgesses pro
paupertate eorum 1 . So Wallingford drops out of this list.
Probably Buckingham has dropped out at an earlier time for
a similar reason. But still this list, especially in the form
that it takes in Henry I.'s time, is of great importance to
those who are going to study the boroughs of Domesday Book.
It looks like a traditional list. It deals out nice round sums.
It is endeavouring to keep Wallingford on a par with Gloucester
and above Northampton. It is retaining Winchcombe.
Thebor- If we make the experiment, we shall discover that this
Dwnesday. catalogue really is a good prologue to Domesday Book. We will
once more visit the counties which form the second zone. The
account that our record gives of Hertfordshire has a preface.
That preface deals with the borough of Hertford and precedes
even the list of the Hertfordshire tenants in chief. Buckingham
in Buckinghamshire and Oxford in Oxfordshire are similarly
treated. In Gloucestershire the city of Gloucester and the
borough of Winchcombe are described before the body of the
county is touched. In Worcestershire, Herefordshire, Cam-
bridgeshire, Huntingdonshire, Bedfordshire, Northamptonshire,
Leicestershire, Warwickshire, Staffordshire 2 , Shropshire, Che-
shire, Derbyshire, Nottinghamshire 3 and Yorkshire the same
procedure is adopted : the account of the shire's city or
borough precedes the account of the shire. In Lincolnshire
the description of the county is introduced by the description
1 Pipe Roll, 31 Hen. I. p. 139.
2 Was the blank space in D. B. i. 246 left for the borough of Tamworth ?
This borough is incidentally mentioned in D. B. i. 238, 246, 246 b.
3 But the account of the two sister boroughs here falls between the accounts
of the two sister counties.
The Boroughs. 177
of Lincoln and Stamford ; also of Torksey, which had been a
place of military importance and seems to have been closely
united with the city of Lincoln by some governmental bond 1 .
Convenient arrangement is not the strong point of ' Little
Domesday ' ; but what is said therein of Colchester is said at
the very end of the survey of Essex, while Norwich, Yarmouth
and Thetford stand at the end of the royal estates in Norfolk,
and Ipswich stands at the end of the royal estates in Suffolk.
If now we enter the southern zone and keep in our minds Southern
the scheme that we havS seen prevailing in the greater part in Domes-
of England, we shall observe that the account of Kent has ay '
a prologue touching Dover, Canterbury and Rochester. In
Berkshire an excellent account of Wallingford precedes the
rubric Terra Regis. Four places in Dorset are singled out for
prefatory treatment, namely, Dorchester, Bridport, Wareham
and Shaftesbury. In Devon Exeter stands, if we may so speak,
above the line, and stands alone, though Barnstaple, Lidford
and Totness are reckoned as boroughs. Of the other counties
there is more to be said. If we compare the first page of the
survey of Somerset with the first pages that are devoted to its
two neighbours, Dorset and Devon, we shall probably come to
the conclusion that the compilers of the book scrupled to put
any Somerset vill on a par with Exeter, Dorchester, Bridport,
Wareham and Shaftesbury. In each of the three cases the page
is mapped out in precisely the same fashion. The second
column is headed by Terra Regis. A long way down in the
first column begins the list of tenants in chief. The upper part
of the first column contains in one case the account of Exeter,
in another the account of the four Dorset boroughs, but in the
third case, that of Somerset, it is left blank. In Wiltshire
Malmesbury and Marlborough stand above the line ; but, if we
look to the foot of the page, we shall suspect that the compilers
can not easily force their general scheme upon this part of the
country. In Surrey no place stands above the line. Guildford
is the first place mentioned on the Terra Regis; Southwark
seems to be inadequately treated on a later page. The case of
Sussex is like that of Somerset ; the list of the tenants in chief
is preceded by a blank space. In Hampshire a whole column
1 D. B. i. 337. It is even called a suburlium of Lincoln, though it lies full
10 miles from the city.
M. 12
178 Domesday Book.
is left blank. On a later page the borough of Southampton has
a column to itself; in the next column stands the Terra Regis
of the Isle of Wight. And now let us turn back to the
Middlesex that we have as yet ignored. Nearly two columns,
to say nothing of some precedent pages, are void 1 .
The Now we must not be led away into speculations which
would be vain. We must not, for example, inquire whether
plan of the information that had been obtained touching London and
Domesday
Book. Winchester was too bulky to fill a room that had been left for
it. We must not inquire whether something was to be said of
Chichester or Hastings, of Ilchester or of Bristol that has not
been said. But apparently we may attribute to King William's
officials a certain general idea. It is an idea which suits the
greater part of England very well, though they find difficulties
in their way when they endeavour to impose it on some of the
counties that lie south of the Thames. The broad fact stands
clear that throughout the larger part of England the commis-
sioners found a town in each county, and in general one town
only, which required special treatment. They do not locate it
on the Terra Regis ; they do not locate it on any man's land.
It stands outside the general system of land tenure.
T }j e For a while, then, let us confine our attention to these
borough on coun ty towns, and we shall soon see why it is that they are
110 mail s J J
laud. rarely brought under any rubric which would describe them as
pieces of the king's soil or pieces of some one else's soil. The
trait to which we allude we shall call (for want of a better
term) the tenurial heterogeneity of the burgesses. In those
boroughs that are fully described we seldom, if ever, find
that all the burgesses have the same landlord. Of course there
is a sense in which, according to the view of the Domesday
surveyors and of all later lawyers, every inch of borough land is
held of one landlord, namely, the king ; but in that sense every
inch of England has the same landlord. The fact that we
would bring into relief is this, that normally the burgesses of
the borough do not hold their burgages immediately of one and
the same lord ; they are not ' peers of a tenure ' ; the group that
they constitute is not a tenurial group. Far rather we shall
1 The one glimpse that I have had of the manuscript suggested to me
(1) that the accounts of some of the boroughs were postscripts, and (2) that
space was left for accounts of London and Winchester. The anatomy of the
book deserves examination by an expert.
The Boroughs. 179
find that, though there will be some burgesses holding immedi-
ately of the king, there will be others whose titles can be traced
to the king only through the medium of other lords. And the
mesne lord will often be a very great man, some prelate or
baron with a widespread honour. Within the borough he will,
to use the language of Domesday Book, ' have ' or ' hold ' a
small group of burgesses, and sometimes they will be reckoned
as annexed to or as ' lying in ' some manor distant from the
town. It seems generally expected that the barons of the
county should have a few burgages apiece in the county town.
This arrangement does not look new. Seemingly the great
men of an earlier day, the antecessores of the Frenchmen, have
owned town-houses : not so much houses for their own use, as
houses or ' haws ' (hagae) in which they could keep a few
' burgesses.'
Some examples of this remarkable arrangement should be Hetero-
given. First we will look at Oxford. The king has many fenuresfin
houses ; the Archbishop of Canterbury has 7 ; the Bishop of ^roughs.
Winchester 9 ; the Bishop of Bayeux 18 ; the Bishop of
Lincoln 30 ; the Bishop of Coutances 2 ; the Bishop of Hereford
3 ; the Abbot of St Edmund's 1 ; the Abbot of Abingdon 14 ;
the Abbot of Eynsham 13. And so with the worldly great :
the Count of Mortain has 10 ; Count Hugh has 7 ; the Count
of Evreux 1 ; Robert of Ouilly 12; Roger of Ivry 15; Walter
Giffard 17 : but we need not repeat the whole long list 1 .
It is so at Wallingford; King Edward had 8 virgates on
which were 276 houses, and they paid him 11 rent; Bishop
Walkelin of Winchester has 27, which pay 25 shillings; the
Abbot of Abingdon has two acres, on which are 7 houses paying
4 shillings; Milo Crispin has 20 houses, which pay 12 shillings
and 10 pence; and so forth 2 . Further, it is said that the
Bishop's 27 houses are valued in Brightwell ; and, turning to
the account of Brightwell, there, sure enough, we find mention
of the 25 shillings which these houses pay 3 . Milo's 20 houses
are said to ' lie in ' Newnham ; he has also in Wallingford 6
houses which are in Hazeley, 1 which is in Stoke, 1 which is in
Chalgrove, one acre with 6 houses which is in Sutton, one acre
with 11 houses which is in Bray; 'all this land' we are told
' belongs to Oxfordshire, but nevertheless it is in Wallingford.'
1 D. B. i. 154. 2 D. B. i. 5G. 3 D. B. i. 58.
122
180 Domesday Book.
Yes, Milo's manor of Chalgrove lies five, his manor of Hazeley
lies seven miles from Wallingford ; nevertheless, houses which
are physically in Wallingford are constructively in Chalgrove
and Hazeley. That we are not dealing with a Norman novelty
is in this case extremely plain. Wallingford is a border town.
We read first of the Berkshire landowners who have burgesses
within it. There follows a list of the Oxfordshire ' thegns ' who
hold houses in Wallingford. Archbishop Lanfranc and Count
Hugh appear in this context as ' thegns ' of Oxfordshire.
Examples When we have obtained this clue, we soon begin to see that
geneTty what is true of Oxford and Wallingford is true even of those
towns of which no substantive description is given us. Thus
there are 'haws' or town-houses in Winchester which are
attached to manors in all corners of Hampshire, at Wallop,
Clatford, Basingstoke, Eversley, Candover, Strathfield, Minstead
and elsewhere. Some of the manors to which the burghers of
London were attached are not, even in our own day, within our
monstrous town ; there are some at Banstead and Bletchiugley
in Surrey, at Waltham and Thurrock in Essex. But in every
quarter we see this curious scheme. At Warwick the king has
in his demesne 113 houses, and his barons have 112 1 . Of the
barons' houses it is written : ' These houses belong to the lands
which the barons hold outside the borough and are valued
there.' Or turn we to a small town : at Buckingham the
barons have 26 burgesses ; no one of them has more than 5. 2
The page that tells us this presents to us an admirable
contrast between Buckingham and its future rival. Aylesbury
is just an ordinary royal manor and stands under the rubric
Terra Regis. Buckingham is a very petty townlet ; but it is a
borough, and Count Hugh and the Bishop of Coutances, Robert
of Ouilly, Roger of Ivry, Arnulf of Hesdin and other mighty
men have burgesses there. As a climax we may mention the
case of Winchcombe. The burgagcs in this little town were
held by many great people. About the year 1100 the king
had 60 ; the Abbot of Winchcombe 40 ; the Abbot of Evesham
2 ; the Bishop of Hereford 2 ; Robert of Belleme 3 ; Robert
Fitzhamon 5, and divers other persons of note had some 29
houses among them 3 . However poor, however small Winchcombe
1 D. B. i. 238. 2 D. B. i. 143.
3 Ellis, Introduction, ii. 446; Winchcombe Land-hoc, ed. Eoyce, p. xiv>
Stevenson, Rental of Gloucester, p. ix.
The Boroughs. 181
may have been, it radically differed from the common manor
and the common village.
We have seen above how in the Conqueror's day the Abbey Burgesses
of Westminster had a manor at Staines 1 and how that manor to manors.
included 48 burgesses who paid 405. a year. Were those bur-
gesses really in Staines, and was Staines a borough ? No, they
were in the city of London. The Confessor had told his
Middlesex thegns how he willed that St Peter and the brethren
at Westminster should have the manor (cotlif) of Staines
with the land called Staninghaw (mid Sam lande Stceningehaga)
within London and all other things that had belonged to
Staines 2 . Is not the guess permissible that Staining Lane in
the City of London 3 , wherein stood the church of St Mary,
Staining, was so called, not ' because stainers lived in it,' but
because it once contained the haws of the men of Staines ?
We must be careful before we find boroughs in Domesday
Book, for its language is deceptive. Perhaps we may believe
that really and physically there were forty-six burgesses in
the vill of St Albans 4 ; but, after what we have read of Staines,
can we be quite sure that these burgesses were not in London ?
The burgesses who de iure 'are in' one place are often de
facto in quite another place.
We may for a moment pass over two centuries and turn Tenure of
to the detailed account of Cambridge given to us by the borough
Hundred Rolls, the most elaborate description that we have ai f ^ te J
of any medieval borough. Now in one sense the ' vill ' or within
borough of Cambridge belongs to the king, and, under him, borough.
to the burgesses, for they hold it of him in capite at a fee-
farm rent. But this does not mean that each burgess holds
his tenement of the corporation or communitas of burgesses,
which in its turn holds every yard of land of the king in chief.
It does not even mean that each burgess holds immediately
of the king, the communitas intervening as farmer of the king's
rents 5 . No, the titles of the various burgesses go up to the king
by many various routes. Some of them pay rents to the officers
of the borough who are the king's farmers ; but many of them
do not. The Chancellor and Masters of the University, for ex-
ample, hold three messuages in the vill of Cambridge ; ' but '
1 D. B. i. 128, 128 b; and above, p. 111. 2 K. 855 (iv. 211).
3 Stow, Survey, ed. Strype, Bk. iii. p. 121. 4 D. B. i. 135 b.
5 Hist. Eng. Law, i. 63G.
telure
182 Domesday Book.
say the sworn burgesses ' what they pay for the same, we do
not know and can not discover 1 .' How could it be otherwise ?
Domesday Book shows us that the Count of Britanny had ten
burgesses in Cambridge 2 . Count Alan's houses will never be
held in chief of the crown by any burgess : they will form part
of the honour of Richmond to the end of time. We may
take another example which will show the permanence of
proprietary arrangements in the boroughs. From an account
of Gloucester which comes to us from the year 1100 or there-
abouts we learn that there were 300 houses in the king's
demesne and 313 belonging to other lords. From the year
1455 we have another account which tells of 310 tenements
paying landgavel to the king's farmers and 346 which pay
them nothing 3 .
The king Perhaps no further examples are needed. But this tenurial
landlords, heterogeneity seems to be an attribute of all or nearly all
the very ancient boroughs, the county towns. In some cases
the king was the landlord of far the greater number of the
burgesses. In other cases the bishop became in course of time
the lord of some large quarter of a town in which his cathedral
stood. At Canterbury and Rochester, at Winchester and
Worcester, this process had been at work from remote days ; the
bishops had been acquiring land and ' haws ' within the walls 4 .
But we can see that in Henry I.'s day there were still four earls
who were keeping up their interest in their burgesses at Win-
chester 5 . In the later middle ages we may, if we will, call these
places royal boroughs and the king's ' demesne boroughs,' for
the burgesses derive their ' liberties ' directly from the king.
But we must keep these ancient boroughs well apart from any
royal manors which the king has newly raised to burghal rank.
In the latter he will be the immediate landlord of every bur-
gess; in the former a good deal of rent will be paid, not to
him, nor to the community as his farmers, but to those who
are filling the shoes of the thegns of the shire.
1 Rot. Hund. ii. 361. - D. B. i. 189.
3 Rental of Gloucester, ed. W. H. Stevenson: Gloucester, 1890, p. s.
4 There are many examples in Kemble's Codex.
B Pipe Eoll, 31 Hen. I. p. 41: 'Vicecomes reddit compotum de 80 de
auxilio civitatis....Et in perdonis....Comiti de Mellent 25 so]....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.
The Boroughs. 183
This said, we will turn back our thoughts to the oldest days. The oldest
The word that deserves our best attention is burh, the future
borough, for little good would come of an attempt to found
a theory upon the Latin words, such as civitas, oppidum and
urbs which occur in some of those magniloquent land-books 1 .
Now it seems fairly clear that for some long time after the
Germanic invasions the word burh meant merely a fastness,
a stronghold, and suggested no thick population nor any popu-
lation at all. This we might learn from the map of England.
The hill-top that has been fortified is a burh. Very often it
has given its name to a neighbouring village 2 . But, to say
nothing of hamlets, we have full two hundred and fifty parishes
whose names end in burgh, borough or bury, and in many cases
we se no sign in them of an ancient camp or of an excep-
tionally dense population. It seems a mere chance that they
are not tons or hams, worths or thorpes. Then again, in Essex
and neighbouring shires it is common to find that in the
village called X there is a squire's mansion or a cluster of
houses called X-bury. Further, we can see plainly from our
oldest laws that the palisade or entrenchment around a great
man's house is a burh. Thus Alfred : The king's burh-bryce
(the sum to be paid for breaking his burh) is 120 shillings, an
1 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, Dun-
wich, London and Eochester 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.
2 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 Archaeol. 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.
184 Domesday Booh
archbishop's 90 shillings, another bishop's 60 shillings, a twelve-
hundred man's 30 shillings, a six-huudred-man's 15 shillings,
a ceorl's edor-bryce (the sum to be paid for breaking his
hedge) 5 shillings 1 . The ceorl, whose wer is 200 shillings,
will not have a burh, he will only have a hedge round his
house; but the man whose wer is 600 shillings will probably
have some stockade, some rude rampart ; he will have a burh.
The king's We observe the heavy bat of 120 shillings which protects
the king's burh. May we not see here the very first stage
in the legal history of our boroughs ? We pass over some
centuries and we read in a statement of the Londoners' customs
that a man who is guilty of unlawful violence must pay the
king's burh-bryce of five pounds 2 . And then the Domesday
surveyors tell us how at Canterbury every crime committed
in those streets which run right through the city is a crime
against the king, and so it is if committed upon the high-
roads outside the city for the space of one league, three perches
and three feet 3 . This curious accuracy over perches and feet
sends us to another ancient document: 'Thus far shall the
king's peace (griS) extend from his burligeat where he is sitting
towards all four quarters, namely, three miles, three furlongs,
three acre-breadths, nine feet, nine hand-breadths, nine barley-
corns 4 .' And then we remember how Fleta tells us that the
verge of the king's palace is twelve leagues in circumference,
and how within that ambit the palace court, the king's most
private court, has jurisdiction 5 .
peaceof the Has not legal fiction been at work since an early time ?
burh.
1 Alfred, 40; Ine, 45.
- Aethclr. iv. 4. The Quadripartitus is our only authority for these
Instituta; but Dr Liebermanu (Quadrip. p. 138) holds that the translator had
in front of him a document written before the Conquest. Schmid would read
lorh-bryce; see p. 541 ; but this emendation seems needless. Has not the sum
been Normanized? The king's biirh-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.
3 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 consuetudiue Regis.'
4 Schmid, App. XII; Leg. Henr. c. 16.
5 Fleta, p. 66; see also 13 Eic. II. stat. 1. cap. 3.
The Boroughs. 185
Has not the sanctity of the king's house extended itself over a
group of houses ? The term burh seems to spread outwards
from the defensible house of the king and with it the sphere of
his burh-bryce is amplified. Within the borough there reigns
a special peace. This has a double meaning : not only do acts
which would be illegal anywhere become more illegal when they
are done within the borough, but acts which would be legal
elsewhere, are illegal there. King Edmund legislating against
the blood-feud makes his burh as sacred as a church ; it is a
sanctuary where the feud may not be prosecuted 1 . If in
construing such a passage we doubt how to translate burh,
whether by house or by borough, we are admitting that the
language of the law does not distinguish between the two.
The Englishman's house is his castle, or, to use an older term,
his burh ; the king's borough is the king's house, for his house-
peace prevails in its streets 2 .
Our oldest laws seem to know no burh other than the strong The town
house of a great (but he need not be a very great) man. Early bm-h. ie
in the tenth century, however, the word had already acquired a
new meaning. In ^Ethelstan's day it seems to be supposed by
the legislator that a moot will usually be held in a burh. If a
man neglects three summonses to a moot, the oldest men of the
burh are to ride to his place and seize his goods 3 . Already a
burh will have many men in it. Some of them will be elder-men,
aldermen. A moot will be held in it. Very possibly this will
be the shire-moot, for, since there is riding to be done, we see
that the person who ought to have come to the moot may live
at a distance 4 . A little later the burh certainly has a moot of
its own. Edgar bids his subjects seek the burh-gemot as well
as the scyr-gem6t and the hundred-gemot. The borough-moot
is to be held thrice a year 5 . At least from this time forward,
the borough has a court. An important line is thus drawn
between the borough and the mere tun. The borough has a
court ; the village has none, or, if the villages are getting
1 Edmund, n. 2.
2 See also Schmid, App. IV. (Be griSe 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.'
3 ^Ethelstan, n. 20.
4 K. 1334 (vi. p. 195) : a contract made at Exeter before Earl Godwin and
nil the shire.
5 Edgar, in. 5 ; Cnut, n. 18.
186 Domesday Book.
courts, this is due to the action of lords who have sake and
soke and is not commanded by national law. National law
commands that there shall be a moot thrice a year in every
burh.
The The extension of the term burh from a fortified house to a
boroughs fortified group of houses must be explained by those who are
skilled in the history of military affairs. It is for them to tell
us, for example, how much use the Angles and Saxons in the
oldest days made of the entrenched hill-tops, and whether the
walls of the Roman towns were continuously repaired 1 . How-
beit, a time seems to have come, at latest in the struggle
between the Danish invaders and the West-Saxon kings, when
the establishment and maintenance of what we might call
fortified towns was seen to be a matter of importance. There
was to be a cluster of inhabited dwellings which as a whole was
to be made defensible by ditch and mound, by palisade or wall.
Edward the Elder and the Lady of the Mercians were active
in this work. Within the course of a few years burgs were
' wrought ' or ' timbered ' at Worcester, Chester, Hertford,
Witham in Essex, Bridgnorth, Tamworth, Stafford, Warwick,
Eddisbury, Warbury, Runcorn, Buckingham, Towcester, Maldon,
Huntingdon 2 . Whatever may be meant by the duty of re-
pairing burgs when it is mentioned in charters coming from a
somewhat earlier time, it must for the future be that of
upholding those walls and mounds that the king and the lady
are rearing. The land was to be burdened with the main-
tenance of strongholds. The land, we say. That is the style
of the land-books. Land, even though given to a church, is
not to be free (unless by exceptional favour) of army-service,
bridge-work and borough-bettering or borough-fastening. Wall-
work 3 is coupled with bridge-work ; to the duty of maintaining
the county bridges is joined the duty of constructing and
repairing the boroughs. Shall we say the ' county boroughs ' ?
The shire Let us ask ourselves how the burden that is known as
borough, burh-bot, the duty that the Latin charters call constructw,
munitio, restauratio, defensio, arcis (for arx is the common
1 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.
2 Green, Conquest of England, 189-207.
3 For instance, K. iii. pp. 5, 50.
The Boroughs. 187
term) will really be borne. Is it not highly probable, almost
certain, that each particular tract of land will be ascript to
some particular arx or castellum 1 , and that if, for instance, there
is but one burh in a shire, all the lands in that shire must help
to better that burh. Apportionment will very likely go further.
The man with five hides will know how much of the mound or
the wall he must maintain, how much ' wall- work ' he must do.
We see how the old bridge-work becomes a burden on the
estates of the county landowners. From century to century
the Cambridgeshire landowners contribute according to their
hidage to repair the most important bridge of their county, a
bridge which lies in the middle of the borough of Cambridge.
^sower arrangements, the rise of castles and of borough
communities, have relieved them from the duty of 'borough-
fastening ; ' but the bridge-work is apportioned on their lands.
The exceedingly neat and artificial scheme of political Military
geography that we find in the midlands, in the country
the true ' shires,' forcibly suggests deliberate delimitation for
military purposes. Each shire is to have its borough in its
middle. Each shire takes its name from its borough. We
must leave it for others to say in every particular case whether
and in what sense the shire is older than the borough or the
borough than the shire : whether an old Roman Chester was
taken as a centre or whether the struggles between Germanic
tribes had fixed a circumference. But a policy, a plan, there
has been, and the outcome of it is that the shire maintains the
borough 2 .
There has come down to us in a sadly degenerate form a
document which we shall hereafter call ' The Burghal Hidage 3 .'
It sets forth, so we believe, certain arrangements made early
in the tenth century for the defence of Wessex against Danish
1 K. Ilo4 (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.'
2 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 Koll, 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.'
3 See our index under Burghal Hidage. Mr W. H. Stevenson's valuable
aid in the identification of these burgs is gratefully acknowledged.
188 Domesday Book.
inroads. It names divers strongholds, and assigns to each a
large number of hides. A few of the places that it mentions
we have not yet found on the map. Beginning in the east of
Sussex and following the order of the list, we seem to see
Hastings, Lewes, Burpham (near Arundel), Chichester, Por-
chester, Southampton, Winchester, Wilton, Tisbury (or perhaps
Chisenbury), Shaftesbury, Twyneham, Wareham, Bredy, Exeter,
Halwell near Totness, Lidford, Barnstaple, Watchet, Axbridge ;
then Langport and Lyng (which defend the isle of Athelney),
Bath, Malmesbury, Cricklade, Oxford, Wallingford, Bucking-
ham, Eastling near Guildtord, and Southwark. Corrupt and
enigmatical though this catalogue may be, it is of the highest
importance. It shows how in the great age of burg-building
the strongholds had wide provinces which in some manner
or another were appurtenant to them, and it may also
give us some precious hints about places in Wessex which
once were national burgs but which forfeited their burghal
character in the tenth century. Guildford seems to have
risen at the expense of Eastling and Totness at the expense
of Halwell, while Tisbury, Bredy and Watchet (if we are
right in fancying that they are mentioned) soon lost caste.
Lyng is not a place which we should have named among
the oldest of England's burgs, and yet we have all read
how Alfred wrought a ' work ' at Athelney. In Wessex
burgs rise and fall somewhat rapidly. North of the Thames
the system is more stable. Also it is more artificial, for north
of the Thames civil and military geography coincide.
The shire's Let us now look once more at the Oxford of Domesday
Book. The king has twenty ' mural houses 1 ' which belonged
to Earl ^Elfgar ; they pay 13s. 2d. He has a house of Qd. which
is constructively at Shipton ; one of 4c. at Bloxham ; one of 30c?.
at Risborough and two of 4td. at Twyford in Buckinghamshire.
' They are called mural houses because, if there be need and the
king gives order, they shall repair the wall.' There follows a
list 'of the noble houseowners, an archbishop, six bishops, three
carls and so forth. 'All the above hold these houses free
because of the reparation of the wall. All the houses that
are called "mural" were in King Edward's time free of every-
thing except army service and wall-work.' Then of Chester
we read this 2 : 'To repair the wall and the bridge, the reeve
1 D. B. i. 154. - D. B. i. 2G2 b.
The Boroughs. 189
called out one man from every hide in the county, and the
lord whose man did not come paid 40s. to the king and earl.'
The duty of maintaining the bulwark of the county's borough is
incumbent on the magnates of the county. They discharge it
by keeping haws in the borough and burgesses in those haws 1 .
We may doubt whether the duty of the county to its Henry the
borough has gone no farther than mere ' wall-work.' A tale the Ger-
from the older Saxony may come in well at this point. When m
the German king Henry the Fowler was building burgs in
Saxony and was playing the part that had lately been played
in England by Edward and ^Ethelflaed, he chose, we are told,
the ninth man from among the agrarii milites ; these chosen
men were to live in the burgs; they were to build dwellings
there for their fellows (confamiliares) who were to remain in the
country tilling the soil and carrying a third of the produce
to the burgs, and in these burgs all concilia and conventus and
convivia were to be held 2 . Modern historians have found in this
story some difficulties which need not be noticed here. Only
the core of it interests us. Certain men are clubbed together
into groups of nine for the purpose of maintaining the burg
as a garrisoned and victualled stronghold in which all will
find room in case a hostile inroad be made.
Turning to England we shall not forget how in the year The shire
894 Alfred divided his forces into two halves ; half were to
take the field, half to remain at home, besides the men who houses -
were to hold the burgs 3 ; but at all events we shall hardly go
astray if we suggest that the thegns of the shire have been
bound to keep houses and retainers in the borough of their
shire and that this duty has been apportioned among the great
estates 4 . We find that the baron of Domesday Book has a
1 It will be understood that we are not contending for an exact cor-
respondence between civil and military geography. Oxford and Wallingfoid
are border towns. Berkshire men help to maintain Oxford, and Oxfordshire
men help to maintain Wallingford.
2 Widukiud, i. 35. For comments see Waitz, Heinrich V. 95; Eichter,
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.
3 A.-S. Chron. ann. 894.
4 A charter of 899 (K. v. p. 141) professes to tell how King Alfred, Abp
Flegmund and ^Ethelred 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,
190 Domesday Book.
few burgesses in the borough and that these few burgesses
'belong' in some sense or another to his various rural manors.
Why should he keep a few burgesses in the borough and in
what sense can these men belong some to this manor and some
to that ? To all appearance this arrangement is not modern.
King Edmund conveyed to his thegn ^Ethelweard an estate
of seven hides at Tistead in Hampshire and therewith the
haws within the burg of Winchester that belonged to those
seven hides 1 . When the Bishop of Worcester loaned out lands
to his thegns, the lands carried with them haws in the ' port '
of Worcester 2 . We have all read of the ceorl who ' throve to
thegn-right.' He had five hides of his own land, a church and
a kitchen, a bell-tower and a burh-geat-setl, which, to our
thinking, is just a house in the 'gate,' the street of the burh'\
He did not acquire a town-house in order that he might enjoy
the pleasures of the town. He acquired it because, if he was
to be one of the great men of the county, he was bound to
keep in the county's burh retainers who would do the wall-
work and hoard provisions sent in to meet the evil day when
all men would wish to be behind the walls of a burh.
The We have it in our modern heads that the medieval borough
in the is a sanctuary of peace, an oasis of ' industrialism ' in the wil-
rough. clerness of 'militancy.' Now a sanctuary of peace the borough
is from the very first. An exceptional and exalted peace
reigns over it. If you break that peace you incur the king's
burh-bryce. But we may strongly suspect that the first burg-
men, the first burgenses, were not an exceptionally peaceful
folk. Those burhwaras of London who thrashed Swegen 4 and
chose kings were no sleek traders; nor must we speak con-
temptuously of ' trained bands of apprentices ' or of ' the civic
militia.' In all probability these burg-men were of all men
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?
1 K. 1144 (v. 280). Other cases : K. 663 (Chichester), 673 (Winchester),
705 (Warwick), 724 (Warwick), 746 (Oxford), 1235 (Winchester).
2 K. 765-6, 805.
3 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 0. E. gcat can mean street.
4 A.-S. Chron. ami. 994.
The Boroughs. 191
in the realm the most professionally warlike. Were we to
say that in the boroughs the knightly element was strong
we might mislead, for the word knight has had chivalrous
adventures. However, we may believe that the burgensis
of the tenth century very often was a cniht, a great man's
cnilit, and that if not exactly a professional soldier (pro-
fessional militancy was but beginning) he was kept in the
borough for a military purpose and was perhaps being fed
by the manor to which he belonged. These knights formed
gilds for religious and convivial purposes. At Cambridge there
was a gild of thegns, who were united in blood-brotherhood.
We can not be certain that all these thegns habitually lived
in Cambridge. Perhaps we should rather say that already a
Cambridgeshire club had its head-quarters in Cambridge and
there held its 'morning-speeches' and its drinking bouts.
These thegns had 'knights' who seem to have been in some
sort inferior members of the gild and to have been bound by
its rules 1 . Then we hear of 'knight-gilds' at London and
Canterbury and Winchester 2 . Such gilds would be models for
the merchant-gilds of after-days, and indeed when not long
after the Conquest we catch at Canterbury our first glimpse
of a merchant-gild, its members are calling themselves knights :
knights of the chapman-gild 3 . Among the knights who dwelt
in the burg such voluntary societies were the more needful,
because these men had not grown up together as members
of a community. They came from different districts and had
different lords. In this heterogeneity we may also see one
reason why a very stringent peace, the king's own house-peace,
should be maintained, and why the borough should have a
moot of its own. When compared with a village there is
something artificial about the borough.
This artificiality exercised an influence over the later fate of Burh-Ut
the boroughs. The ground had been cleared for the growth of guard.
a new kind of community, one whose members were not bound
together by feudal, proprietary, agricultural ties. But the
strand that we have been endeavouring to trace is broken at
1 Thorpe, Diplomatarium, 610. When the Confessor sends a writ to
London he addresses it to the bishop, portreeve and burh-thegus. See K. iv.
pp. 856, 857, 861, 872.
- Gross, Gild Merchant, i. 183, 189.
3 Gross, op. cit. ii. 37.
192 Domesday Book.
the Conquest. The castle arises. It is garrisoned by knights
who are more heavily armed and more professionally militant
than were their predecessors. The castle is now what wants
defending; the knights who defend it form no part of the
burghal community, and perhaps ' the castle fee ' is in law no
part of the borough. And yet let us see how in the twelfth
century the king's castle at Norwich was manned. It was
manned by the knights of the Abbot of St Edmund's. One
troop served there for three months and then was relieved by
another, and those who were thus set free went home to the
manors with which the abbot had enfeoffed them and which
they held by the service of castle-guard 1 . Much in this
arrangement is new ; the castle itself is new ; but it is no
new thing, we take it, that the burh should be garrisoned by
the knights of abbots or earls. And who built the castles, who
built the Tower of London ? Let us read what the chronicler
says of the year 1097 : Also many shires which belonged to
London for work 2 were sorely harassed by the wall that they
wrought around the tower, and by the bridge, which had been
nearly washed away, and by the work of the king's hall that
was wrought at Westminster. There were shires or districts
which from of old owed this work or work of this kind to
London-bury 3 .
Borongh Long before the Conquest, however, a force had begun to
and i i
market. play which was to give to the boroughs their most permanent
characteristic. They were to be centres of trade. We must
not exclude the hypothesis that some places were fortified and
converted into burgs because they were already the focuses of
such commerce as there was. But the general logic of the
process we take to have been this : The king's burh enjoys a
special peace : Even the men who are going to or coming from
it are under royal protection: Therefore within its walls men
can meet together to buy and sell in safety : Also laws which
are directed against theft command that men shall not buy and
sell elsewhere : Thus a market is established : Traders begin to
1 Hist. Eng. Law, i. 257.
- A.-S. Chrcm. ann. 1097 : ' Eac manege sciran J>e mid weorce to Lundenna
belumpon...' Thorpe thought good to substitute scipan for sciran.
3 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.
The Boroughs. 193
build booths round the market-place and to live in the borough.
A theory has indeed been brilliantly urged which would find
the legal germ of the borough rather in a market-peace than in
the peace of a burg 1 . But this doctrine has difficulties to meet.
A market-peace is essentially temporary, while the borough's
peace is eternal. A market court, if it arises, will have a
jurisdiction only over bargains made and offences committed
on market-days, whereas the borough court has a general
competence and hears pleas relating to the property in houses
and lands. Here in England during the Angevin time the
' franchise,' or royally granted right, of holding a market is quite
distinct from the legal essence of the borough. Lawful markets
are held in many places that are not boroughs ; indeed in the
end by calling a place ' a mere market-town ' we should imply
that it was no borough. Already in Domesday Book this seems
to be the case. Markets are being held and market-tolls are
being taken in many vills which are not of burghal rank 2 .
Perhaps also we may see the borough-peace and the market-
peace lying side by side. In the Wallingford of the Confessor's
day there were many persons who had sake and soke within
their houses. If any one spilt blood and escaped into one of
those houses before he was attached, the owner received the
blood-wite. But it was not so on Saturdays, for then the money
went to the king 'because of the market 3 .' Thus the king's
borough-peace seems to be intensified on market-days ; on
those days it will even penetrate the houses of the immunists.
So at Dover some unwonted peace or ' truce ' prevailed in the
town from S k . Michael's Day to S l . Andrew's : that is to say,
during the herring season 4 .
The establishment of a market is not one of those indefinite Estabiisb-
phenomena which the historian of law must make over to the markets,
historian of economic processes. It is a definite and a legal act.
The market is established by law. It is established by law
which prohibits men from buying and selling elsewhere than in
a duly constituted market. To prevent an easy disposal of
1 Sohm, Die Entstehung des deutscben Stadtewesens : Leipzig, 1890.
2 Ellis, Introduction, i. 248-253.
3 D. B. i. 56 b.
4 D. B. i. 1. Black Book of the Admiralty, ii. 158: 'the herring season,
that is from S'. Michael's Day to S*. Clement's (Nov. 23).' S'. Andrew's Day
isDecr-4,
II. 13
194 Domesday Book.
stolen goods is the aim of this prohibition. Our legislators are
always thinking of the cattle-lifter. At times they seem to go
the full length of decreeing that only in a ' port ' may anything
be bought or sold, unless it be of trifling value ; but other
dooms would also sanction a purchase concluded before the
hundred court. He who buys elsewhere runs a risk of being
treated as a thief if he happens to buy stolen goods 1 . Official
witnesses are to be appointed for this purpose in every hundred
and in every burh : twelve in every hundred and small burh,
thirty-three in a large burh*. Here once more we see the burh
co-ordinated with the hundred. A by-motive favours this
establishment of markets. Those who traffic in the safety of
the king's burh may fairly be asked to pay some toll to the
king. They enjoy his peace; perhaps also the use of royal
weights and measures, known and trustworthy, is another part
of the valuable consideration that they receive. First and last
throughout the history of the boroughs toll is a matter of
importance 3 . It gives the king a revenue from the borough,
a revenue that he can let to farm. Also, though we do not
think that the borough court was in its origin a mere market
court, the disputes of the market-place will provide the borough
court with plentiful litigation, and in this quarter also the king
will find a new source of income. Among the old land-books
that which speaks most expressly of the profits of jurisdiction
as the subject-matter of a gift is a charter which concerns the
town of Worcester. ^Ethelred and ^Ethelfloed, the ealdorman
and lady of the Mercians, have, at the request of the bishop,
built a burh at Worcester, and they declare that of all the
rights that appertain to their lordship both in market (on
ceapstowe) and in street, within the burh and without, they
have given half to God and S l . Peter, with the witness of King
Alfred and all the wise of Mercia, The lord of the church
is to have half of all, be it land-fee, or fiht-wite, stealing,
wohceapung (fines for buying or selling contrary to the rules
of the market) or borough-wall-scotting 4 . Quite apart from
1 Edward, i. 1; ^thelstan, n. 12, 13; iv. 2; vi. 10; Edmund, m. 5;
Edgar, iv. 7-11; Leg. Will. i. 45; Leg. Will. in. 10. See Schmid, Glossar.
s.v. Harktrecht.
- Edgar, iv. 3-6. We should expect rather 36 than 33, and xxxvi might
easily become xxxlii.
3 K. 280 (ii. 63), 316 (ii. 118).
4 Kemble, Cod. Dip. 1075 (v. 142); Kemble, Saxons, ii. 328; Thorpe, 136:
The Boroughs. 195
the rent of houses, there is a revenue to be gained from the
borough.
Another rule has helped to define the borough, and this Moneyers
rule also has its root among the regalia. No one, says King burhf
^Ethelstan, is to coin money except in a port; in Canterbury
there may be seven moneyers, four of the king, two of the
bishop, one of the abbot ; in Rochester three, two of the king,
one of the bishop ; in London-borough eight ; in Winchester
six ; in Lewes two ; in Hastings one ; in Chichester one ; in
Hampton two ; in Wareham two ; in Exeter two ; in Shaftesbury
two, and in each of the other boroughs one 1 . Already, then, a
burh is an entity known to the law : every burh is to have its
moneyer.
We have thus to consider the burh (1) as a stronghold, a Burh and
place of refuge, a military centre : (2) as a place which has a
moot that is a unit in the general, national system of moots :
(3) as a place in which a market is held. When in the laws
this third feature is to be made prominent, the burh is spoken
of as a port, and perhaps from the first there might be a port
which was not a burh*. The word port was applied to inland
towns. To this usage of it the portmoot or portmanmoot that
in after days we may find in boroughs far from the coast bears
abiding testimony. On the other hand, except on the seaside,
this word has not become a part of many English place names 3 .
If, as seems probable, it is the Latin portus, we apparently learn
from the use made of it that at one time the havens (and some
of those havens may not have been in England) were the only
known spots where there was much buying and selling. But
be it remembered that a market-place, a ceap-stow, does not
c ge landfeoh, ge fihtwite, ge stale, ge wohceapung, ge burhweatles 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 Eoyal Commission on
Market Eights, 1889.
1 ^thelstan, n. U.
2 The general equivalence of port and burh we may perhaps infer from
./Ethelstau, n. 14 : No one is to coin money outside a port, and there is to be a
moneyer in every burh.
3 Stockport, Langport, Arnport, Newport-Pagnell, Milborne Port, Littleport
are instances. But a very small river might be sufficient to make a place a
haven.
132
19G
Domesday Book.
Military
and com-
mercial
elements
in the
borough.
The
borough
and agri-
culture.
imply a resident population of buyers and sellers ; it does not
imply the existence of retailers 1 .
We can not analyse the borough population ; we can not
weigh the commercial element implied by port or the military
element implied by burh ; but to all seeming the former had
been rapidly getting the upper hand during the century which
preceded the making of Domesday Book. If we are on the
right track, there was a time when the thegns of the shire must
have regarded their borough haws rather as a burden than as a
source of revenue. They kept those haws because they were
bound to keep them. On the other hand, the barons of the
Conqueror's day are deriving some income from these houses.
Often it is very small. Count Hugh, for example, has just one
burgess at Buckingham who pays him twenty-six pence a year 2 .
All too soon, it may be, had the boroughs put off their
militancy. Had they retained it, England might never have
been conquered. Houses which should have been occupied by
' knights,' were occupied by chapmen.
But this is not the whole difficulty. Even if we could
closely watch the change which substitutes a merchant or
shopkeeper for a ' knight ' as the typical burg-man or burgess,
we should still have to investigate an agrarian problem. Very
likely we ought to think that even on the eve of the Conquest
the group of men which dwells within the walls is often a group
which by tilling the soil produces a great part of its own food,
1 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 medium 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, Ivii. 75 : ' Toutes les villcs
anciennes [en Flandre] s'y forment au bord des eaux et portent le nom carac-
teristique de portus, c'est-a-dire de debarcaderes. C'est de ce mot portus que
vient le mot flamand poorter, qui desigue le bourgeois.' See D. B. i. 181 b:
'in Hereford Port.'
2 D. B. i. 143.
The Boroughs. 197
though some men may be living by handicraft or trade and
some may still be supported by those manors to which they
'belong.' In one case the institutions that are characteristic
of burh and port may have been superimposed upon those of an
ancient village which had common fields. In another an almost
uninhabited spot may have been chosen as the site for a strong-
hold. In the former and, as we should fancy, the commoner
case a large choice is open to the constructive historian, for he
may suppose that the selected village was full of serfs or full of
free proprietors, that the soil was royal demesne or had various
landlords. In one instance he may think that he sees the
coalescence of several little communities that were once distinct ;
in another the gradual occupation of a space marked out by
Roman walls. The one strong hint that is given to us by
Domesday Book and later documents is that our generalities
should be few and that, were this possible, each borough should
be separately studied.
As a rule, quite half of the burgesses in any of those county Burgesses
towns that are fully described in the survey are the king's own vators.
burgesses, and in some cases his share is very large. This
suggests that the land on which the borough stands has been
royal land and that the king provided the shire thegns with
sites for their haws. For their haws they have sometimes been
paying him small rents. On the other hand, at Leicester,
though the king has some 40 houses, the great majority belong
to Hugh of Grantmesnil. He has about 80 houses which
pertain to 17 different manors and which may in the past
have been held by many different thegns; but he also holds
110 houses which are not allotted to manors and which have
probably come to him as the representative of the earls and
ealdormen of an older time 1 . This looks as if in this case the
soil had been not royal but ' comital ' laud at the time when
the place was fortified and when the landowners of the shire,
including perhaps the king, were obliged to build houses within
the wall. But though we fully admit that each of our boroughs
has lived its own life, our evidence seems to point to the
conclusion that in those truly ancient boroughs of which we
have been speaking, though there might be many inhabitants
who held and who cultivated arable land lying without the
walls, there were from a remote time other burgesses who were
1 D. B. i. 230.
198 Domesday Book.
not landowners and were not agriculturists and yet were men
of importance in the borough. If we look, for example, at the
elaborate account of Colchester we shall first read the names of
the king's burgesses. ' Of these 276 burgesses of the king, the
majority have one house and a plot of land of from one to
twenty-five acres ; some possess more than one house and some
have none; they had in all 355 houses and held 1296 acres
of land 1 '. But these were not the only burgesses. Various
magnates had houses which were annexed to their rural manors.
Count Eustace (to name a few) had 12, Geoffrey de Mandeville
2, the Abbot of Westminster 4, the Abbess of Barking 3, and
seemingly to these houses no strips in the arable fields were
attached 2 . Thus, though many of the burgesses may till the
soil, the borough community is not an agrarian community.
We can not treat it as a village community that has prospered
and slowly changed its habits. A new principle has been
introduced, an element of heterogeneity. The men who meet
each other in court and market, the men who will hereafter
farm the court and market, are not the shareholders in an
agricultural concern.
Burgage That tenurial heterogeneity of which we have been speaking
had another important effect. When in later days a rural
manor is being raised to the rank of a liber burgus, the intro-
duction of ' burgage tenure ' seems to be regarded as the very
essence of the enfranchisement 3 . Probably this feature had
appeared in many boroughs at an early date. The lord with
lands in Oxfordshire may have been bound to keep a few houses
and retainers in Oxford. If, however, the commercial element
in the town began to get the better of the military element, if
Oxford became a centre of trade, then a house in Oxford could
be let for a money rent. In Domesday Book the barons
are drawing rents from their borough houses. If any return
is to be made by the occupier to the owner it will take the
form of a money rent; it can hardly take another form.
Thus tenure at a money rent would become the typical tenure
of a burgage tenement. It will be a securely heritable tenure,
because the landlord is an absentee and has too few tenants in
1 Cutts, Colchester, 65; Bound in The Antiquary, vol. vi. (1882) p. 5.
2 D. B. ii. 106-7. See Round, op. cit., p. 252.
3 Hist. Eng. Law, i. 629.
The Boroughs. 199
the town to require the care of a resident reeve. But there
may have been many dwellers in some of the boroughs who
were bound to help in the cultivation of a stretch of royal or
episcopal demesne that lay close to the walls. In the west
some of the king's burgesses seem to have been holding under
onerous terms. At Shrewsbury, which lies near the border of
Wales where every girl's marriage gave rise to an amobyr, a
maid had to pay ten, a widow twenty shillings when she took a
husband, and a relief of ten shillings was due when a burgess
died 1 . At Hereford the reeve's consent was necessary when a
burgage was to be sold, and he took a third of the price. When
a burgess died the king got his horse and arms (these Hereford
burgesses were fighting men); if he had no horse, then ten
shillings ' or his land with the houses.' Any one who was too
poor to do his service might abandon his tenement to the reeve
without having to pay for it. Such an entry as this seems to tell
us that the services were no trivial return for the tenement 2 .
On the other hand, we may see at Stamford what seem to Eastern
be the remains of a very free group of settlers, presumably western
Danes. The town contains among other houses 77 houses of borouglls -
sokemen 'who hold their lands in demesne and seek lords
wherever they please, and over whom the king has nothing
but wite and heriot and toll.' These may be the same persons
who hold 272 acres of land and pay no rent for it 3 . At
Norwich, again, we seem to hear of a time when the burgesses
were free to commend themselves to whomever they would, and
were therefore living in houses which were all their own, and
for which they paid no rent 4 . It is very possible that, so far as
landlordly rights are concerned, there was as much difference
between the eastern and the western towns as there was
between the eastern and the western villages. Still if we
look at borough after borough, tenure at a money rent is the
tenure of the burgage houses that we expect to find, and such
a tenure, even if in its origin it has been precarious, is likely to
1 D. B. i. 252.
2 D. B. i. 179. So at Chester (i. 2G2 b) it is considered possible that the
heir will not be able to pay the relief of ten shillings and will forfeit the
tenement.
3 D. B. i. 336.
4 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.
200 Domesday Book.
become heritable and secure. As to the shire thegus, they
have in some cases paid to the king small rents for their haws ;
but in others, for example at Oxford, tenure by wall-work has
been their tenure, and when in other towns we find them paying
rent to the king we may perhaps see commuted wall-work.
Common Traces are few in Domesday Book of any property that
of the y can be regarded as the property of a nascent municipal cor-
3es- poration, and even of any that can be called the joint or
common property of the burgesses. In general each burgess
holds his house in the town of the king or of some other lord
by a several title, and, if he has land in the neighbouring fields,
this also he holds by a several title. 'In the borough of
Nottingham there were in King Edward's day 183 burgesses
and 19 villani. To this borough belong 6 carucates of land for
the king's geld and one meadow and certain small woods... This
land was divided between 38 burgesses and [the king] received
7 5s. 7d. from the rent of the land and the works of the burgesses.'
' In the borough of Derby there were in King Edward's day 243
resident burgesses.... To this borough belong 12 carucates of
land for the geld, but they might be ploughed by 8 teams.
This land was divided among 41 burgesses who had 12 teams 1 .'
In these cases we see plainly enough that such arable land
as is in any way connected with the borough has been held by
but a few out of the total number of the burgesses. Therefore
we must deal cautiously with entries that are less explicit.
When, for example, in the description of Stamford we read
The com- " Lagemanni et burgenses habent cclxxii. acras sine omni con-
land- J suetudine 2 ,' we must not at once decide that there is any
holders, ownership by the burgesses as a corporation, or any joint
ownership, or even that all the burgesses have strips in these
fields, though apparently the burgesses who have strips pay
no rent for them. This is the fact and the only fact that
the commissioners desire to record. They do not care whether
every burgess has a piece, or whether (as was certainly the
case elsewhere) only some of them held land outside the walls.
When of Norwich we read ' et in burgo tenent burgenses xliii.
capellas 3 / we do not suppose that all the Norwich burghers
have chapels, still less that they hold the forty-three chapels
1 D. B. i. 280. - D. B. i. 336 b.
3 D. B. ii. 117.
The Boroughs. 201
as co-owners, still less that these chapels belong to a cor-
poration. We remember that the Latin language has neither
a definite nor an indefinite article. Therefore when of 80
acres at Canterbury, which are now held by Ralph de Co-
lombiers, we read ' quas tenebant burgenses in alodia de rege,'
we need not suppose that these acres had belonged to the
(i.e. to all the) burgesses of Canterbury 1 . So of Exeter it is
written : ' Burgenses Exoniae urbis habent extra civitatem
terram xii. caruc[arum] quae nullam consuetudinem reddunt
nisi ad ipsam civitatem.' This, though another interpretation
is possible, may only mean that there are outside the city
twelve plough-lands which are held by burgesses whose rents
go to make up that sum of 18 which is paid to the king,
or rather in part to the sheriff and in part to the queen dowager,
as the ferm of the city 2 . Concerning Colchester there is an
entry which perhaps ascribes to the community of burgesses
the ownership or the tenancy of fourscore acres of land and of
a strip eight perches in width surrounding the town wall ; but
this entry is exceedingly obscure 2 . Another dark case occurs
at Canterbury. We are told that the burgesses or certain
burgesses used to hold land of the king ' in their gild 4 .' Along
with this we must read another passage which states how
in the same city the Archbishop has twelve burgesses and
thirty-two houses which ' the clerks of the vill hold in their
gild.' Apparently in this last case we have a clerical club
1 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.
D. B. i. 100.
3 D. B. ii. 107: 'In commune burgensum iiii. xx. acrae terrae; et circa
murum viii. percae ; de quo toto per annum habent burgenses Ix. sol. ad
servicium regis si opus fuerit, sin autem, in commune dividunt.' As to this
most difficult passage, see Eound, 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.
4 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. 3o. It is closely connected with the Domesday Survey
and is of the highest interest.
202 Domesday Book.
or fraternity holding land, and the burgher's gild may be of
much the same nature, a voluntary association. Not very
long after the date of Domesday, for Anselm was still alive,
an exchange of lands was made between the convent (hired,
familia) of Christ Church and the 'cnihts' of the chapman
gild of Canterbury. The transaction takes place between the
'hired' on the one hand, the 'heap' (for such is the word
employed) on the other. The witnesses to this transaction
are Archbishop Anselm and the ' hired ' on the one hand,
Calveal the portreeve and 'the eldest men of the heap' on
the other 1 . But to see a municipal corporation in the burghers'
gild of Domesday Book would be very rash. We do not know
that all the burghers belonged to it or that it had any govern-
mental functions 2 .
Eights of We may of course find that a group of burgesses has
common. . i , * > -i i_i u .1 1,1
'rights of common; but rights of common, though they are
rights which are to be enjoyed in common, are apt to be
common rights in no other sense, for each commoner has a
several title to send his beasts onto the pasture. Thus 'all
the burgesses of Oxford have pasture in common outside the
wall which brings in [to the king] 6s. 8d 3 ' The soil is the
king's; the burgesses pay for the right of grazing it. The
roundness of the sum that they pay seems indeed to hint
at some arrangement between the king and the burgesses
taken in mass; but probably each burgess, and the lord of
each burgess, regards a right of pasture as appurtenant to
a burgage tenement. The case is striking, for we have seen
how heterogeneous a group these Oxford burgesses were 4 . No
less than nine prelates, to say nothing of earls and barons,
had burgesses in the city. We must greatly doubt whether
there is any power in any assembly of the burgesses to take
from the Bishop of Winchester or the Count of Mortain the
customary rights of pasture that have been enjoyed by the
Absence of tenants of his tenements.
communal- We might perhaps have guessed that the boroughs would
boroughs.
1 Gross, Gild Merchant, ii. 37.
2 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.
3 D. B. i. 154. 4 See above, p. 179.
The Boroughs. 203
be the places of all others in which such communalism as there
was in the ancient village community would maintain and
develop itself, until in course of time the borough corporation,
the ideal borough, would stand out as the owner of lands
which lay within and without the wall. But, if we have not
been going astray, we may see why this did not happen, at
least in what we may call the old national boroughs. The
burgensic group was not homogeneous enough. We may sup-
pose that some members of it had inherited arable strips and
pasture rights from the original settlers ; but others were
' knights ' who had been placed in the haws of the shire-thegns,
or were merchants and craftsmen who had been attracted by
the market, and for them there would be no room in an old
agrarian scheme. Indeed it is not improbable that, even as
regards rights of pasture, there was more difference between
burgess and burgess than there was between villager and
villager. In modern times it is not unknown that some of
the burgesses will have pasture rights, while others will have
none, and in those who are thus favoured we may fancy that
we see the successors in title of the king's tenants who turned
out their beasts on the king's land 1 .
We have seen that in the boroughs a group of men is The
formed whose principle of cohesion is not to be found in community
land tenure. The definition of a burgess may involve the
possession of a house within or hard by the walls; but the
burgesses do not coalesce as being the tenants or the men
of one lord; and yet coalesce they will. They are united in
and by the moot and the market-place, united under the king
in whose peace they traffic; and then they are soon united
over against the king, who exacts toll from them and has
favours to grant them. They aspire to farm their own tolls,
to manage their own market and their own court. The king's
1 In modern York the freemen inhabiting the different wards had rights of
pasture varying from ward to ward: Appendix to Keport 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.
204 Domesday Book.
rights are pecuniary rights ; he is entitled to collect numerous
small sums. Instead of these he may be willing to take a
fixed sum every year, or, in other words, to let his rights to
farm.
The farm This step seems to have been very generally taken before
borough, the Conquest. Already the boroughs were farmed. Now the
sums which the king would draw from a borough would be
of several different kinds. In the first place, there would be
the profits of the market and of the borough court. In the
second place, there would be the gafol, the ' haw-gavel ' and
' land-gavel ' arising from tenements belonging to the king
and occupied by burgesses. In the third place, there might
be the danegeld ; but the danegeld was a tax, an occasional
tax, and for the moment we may leave it out of our con-
sideration. Now the profits of the market and court seem to
have been farmed. The sums that they bring in to the king
are round sums. The fanner seems to have been the sheriff or
in some cases the king's portreeve. We can find no case in
which it is absolutely clear to our minds that the borough itself,
the communitas burgi, is reckoned to be the king's farmer.
Again, the king's gafol, that is his burgage rents, may be farmed :
they are computed at a round sum. Thus at Huntingdon
ten pounds are paid by way of land-gafol, and we may be fairly
certain that the sum of the rents of the individual burgesses
who held their tenements immediately of the king (there were
other burgesses who belonged to the Abbot of Ramsey) did
not exactly make up this neat sum 1 . In this case, however,
the sum due to the king from his farmer, probably the sheriff,
in respect of the land-gafol is expressly distinguished from
the sum that he has to pay for the farm of the borough (firma
burgi}'. at least in its narrowest sense, the burg us which is
farmed is not a mass of lands and houses, it is a market and
a court 2 . But, though we find no case in which the community
of the borough is unambiguously treated as the king's fanner,
there .are cases in which it seems to come before us as the
sheriff's farmer. ' The burgesses ' of Northampton pay to the
sheriff 30. 10s. per annum : 'this belongs to his farm 3 .' Thr
sheriff of Northamptonshire is liable to the king for a round
1 D. B. i. 203. As to the whole of this matter see Mr Round's paper on
Domesday Finance in Domesday Studies, vol. i.
2 Hist. Eng. Law, i. lj:3y. 3 D. 13. i. 21'.).
The Boroughs. 205
sum as the farm of the shire, but ' the burgesses ' of North-
ampton are liable to the sheriff for a round sum. This may
mean that for this round sum they are jointly and severally
liable, while, on the other hand, they collect the tolls and fines,
perhaps also the king's burgage rents, and have an opportunity
of making profit by the transaction.
We must not be in haste to expel the sheriff from the The sheriff
boroughs of the shire, or to bring the burgesses into immediate borough's
contact with the king's treasury. We must remember that farm-
at the beginning of Henry II.'s reign there is scarcely an
exception to the rule that the boroughs of the shire are in
the eyes of auditors at the Exchequer simply parts of that
county which the sheriff farms. So far as the farm is con-
cerned, the royal treasury knows nothing of any boroughs 1 .
The sheriff of Gloucestershire, for example, accounts for a
round sum which is the farm of his county ; neither he nor
any one else accounts to the king for any farm of the borough
of Gloucester. If, as is most probable, the borough is being
farmed, it is being farmed by some person or persons to whom,
not the king, but the sheriff has let it for a longer or shorter
period at a fixed rent. Here, again, we see the likeness between
a borough and a hundred. The king lets the shire to farm ;
the shire includes hundreds and boroughs ; the sheriff ' lets
the hundreds to farm ; the sheriff lets the boroughs to farm/
A few years later a new arrangement is made. The king
begins to let the borough of Gloucester to farm. A sum of
-50 (blanch) is now deducted from the rent that the sheriff
has been paying for his shire, and, on the other hand, Osmund
the reeve accounts for 55, which is the rent of the borough.
We must not antedate a change which is taking place very
gradually in the middle of the twelfth century.' Nor must we
at once reject the inference that, as the bailiffs to whom the
sheriff lets the hundreds are chosen by him, so also the bailiffs
or portreeves to whom he lets the boroughs are or have been
chosen by him. It seems very possible that one of the first
1 The case of London is anomalous; but not so anomalous as it is often
supposed to he. On this point see Round, Geoffrey de Mandeville, 347 if. 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.
206 Domesday Book.
steps towards independence that a borough takes is that its
burgesses induce the sheriff to accept their nominee as his
farmer of the town if they in mass will make themselves
jointly and severally liable for the rent. These movements
take place in the dark and we can not date them ; but to
antedate them would be easy.
The com- We also see that the 'geld' that the borough has to pay
inanity and , ,
the geld, is a round sum that remains constant from year to year.
Cambridge, for example, is assessed at a hundred hides, Bedford
at half a hundred 1 . Now we have good reason to believe that,
in the open country also, a round sum of geld or (and this is the
same thing) a round number of hides had been thrown upon
the hundreds, that the sum thrown upon a hundred was then
partitioned among the vills, and that the sum thrown upon a
vill was partitioned among the persons who held land in the
vill. In the open country, however, when once the partition
had been made, the number of hides that was cast upon the
land of any one proprietor seems to have been fixed for good
and all 2 . If we suppose, for example, that a vill had been
assessed at ten hides and that five of those units had been
assigned to a certain Edward, then Edward or his successors in
title would always have to pay for five hides, and would have to
pay for no more although the other proprietors in the vill
obtained an exemption from the tax or were insolvent. In
short, the tax though originally distributed by a partitionary
method was not repartitionable. On the other hand, in the
boroughs a more communal arrangement seems to have pre-
vailed. In some sense or another, the whole borough, no matter
what its fortunes might be, remained answerable for the twenty,
fifty or a hundred hides that had been imposed upon it. Such
a difference would naturally arise. In the open country the
taxational hidation was supposed to represent and did represent,
albeit rudely, a state of facts that had once existed. The man
who was charged with a hide ought in truth to have had one
of those agrarian units that were commonly known as hides.
But when a borough was charged with hides, a method of
taxation that was adapted to and suggested by rural arrange-
ments was being inappropriately applied to what had become
1 As to the round sums cast on the boroughs, see Bound in Domesday
Studies, i. 117 ff. ; also Eound, Feudal England, 156.
2 This may not have been the case in East Anglia.
The Boroughs. 207
or would soon become an urban district. Thus the gross sum
that is cast upon the borough does not split itself once and for
all into many small sums each of which takes root in a
particular tenement. The whole sum is exigible from the
whole borough every time a geld is imposed. It is repartition-
able.
For all this, however, we must be careful not to see more Partition
communalism or more local self-government than really exists.
At first sight we may think that we detect a communal or a
joint liability of all the burgesses for the whole sum that is
due from the borough in any one year. ' The English born '
burgesses of Shrewsbury send up a piteous wail 1 . They still
have to pay the whole geld as they paid it in the Confessor's
day, although the earl has taken for his castle the sites of
fifty-one houses, and other fifty houses are waste, and forty-
three French burgesses hold houses which used to pay geld,
and the earl has given to the abbey, which he has founded,
thirty-nine burgesses who used to pay geld along with the
others. But, when we examine the matter more closely, we
may doubt whether there is here any joint and several (to say
nothing of any corporate) liability. Very various are the modes
in which a land-tax or house-tax may be assessed and levied.
Suppose a tax of 100 imposed upon a certain district in which
there are a hundred houses. Suppose it also to be law that,
though some of these houses come to the hands of elemosynary
corporations (which we will imagine to enjoy an immunity from
taxation) still the whole 100 must be raised annually from the
householders of the district. For all this, we have not as yet
decided that any householder Avill ever be liable, even in the
first instance, for more than his own particular share of the
100. A readjustment of taxation there must be. It may
take one of many forms. There may be a revaluation of the
district, and the 100 may be newly apportioned by some
meeting of householders or some government officer. But,
again, the readjustment may be automatic. Formerly there
were 100 houses to pay 100. Now there are 90 houses to
pay 100. That each of the 90 must pay ten-ninths of a pound
is a conclusion that the rule of three draws for us. In the
middle ages an automatic readjustment was all the easier
because of the common assumption that the value of lands
1 D. B. i. 252.
208 Domesday Book.
and houses was known to every one and that one virgate in a
manor was as good as another, one ' haw ' in a borough as good
as another 1 . We do not say that the complaint of the burgesses
at Shrewsbury points to no more than an automatic readjust-
ment of taxation which all along has been a taxation of
individuals; still the warning is needful that the exaction
at regular or irregular intervals of a fixed amount from a
district, or from the householders or inhabitants of a district,
an amount which remains constant though certain portions of
the district obtain immunity from the impost, does not of
necessity point to any kind of liability that is not the liability
of one single individual for specific sums which he and he only
has to pay ; nor does it of necessity point to any self-governing
or self-assessing assembly of inhabitants 2 .
No corpor- Returning, however, to the case of Northampton, it certainly
plied byUie seems to tell us of a composition, not indeed between the
of'th" 18 burgesses and the king, but between the burgesses and the
borough, sheriff. 'The burgesses of Northampton pay to the sheriff
30. 10s.' We may believe that 'the burgesses' who pay this
sum have a chance of making a profit. If so, ' the burgesses '
are already beginning to farm ' the borough.' From this,
nevertheless, we must not leap to corporate liability or corporate
property. Very likely the sheriff regards every burgess of
Northampton as liable to him for the whole 30. 10s. ; very
certainly, as we think, he does not look for payment merely to
property which belongs, not to any individual burgess nor to
any sum of individual burgesses, but to 'the borough' of
Northampton. Nor if the burgesses make profit out of tolls
and fines, does it follow that they have a permanent common
1 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.
'-' 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 collect n-f linbility.' This may be a useful term,
provided that we distinguish (a) liability of a corporation for the whole tax
whenever it is levied ; (I) 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.
The Boroughs. 209
purse ; they may divide the surplus every year 1 , or we may
suspect them of drinking the profits as soon as they are made.
Entries which describe the limits that are set to the duty of Borough
military or of naval service may seem more eloquent. Thus of orgauiza-
Dover we are told that the burgesses used to supply twenty tlon '
ships for fifteen days in the year with twenty-one men in each
ship, and that they did this because the king had released to
them his sake and soke 2 . Here we seem to read of a definite
transaction between the king of the one part and the borough
of the other part, and one which implies a good deal of
governmental organization in the borough. We would say
nothing to lessen the just force of such a passage, which does
not stand alone 3 ; but still there need be but little more
organization in the borough of Dover than there is in Berk-
shire. It was the custom of that county that, when the king
summoned his host, only one soldier went from every five
hides, while each hide provided him with four shillings for his
equipment and wages 4 . We may guess that in a county such
a scheme very rapidly ' realized ' itself and took root in the soil,
that in a borough there was less ' realism,' that there were more
frequent readjustments of the burden ; but the difference is a
difference of degree.
Of anything: that could be called the constitution of the Govern-
ment of the
boroughs, next to nothing can we learn. We may take it that boroughs.
in most cases the king's farmer was the sheriff of the shire ; in
some few cases, as for example at Hereford, the reeve of the
borough may have been directly accountable to the king 5 . We
know no proof that in any case the reeve was an elected officer.
Probably in each borough a court was held which was a court
for the borough ; probably it was, at least as a general rule,
co-ordinate with a hundred court, and indeed at starting the
borough seems to be regarded as a vill which is also a hundred 6 .
1 See the entry touching Colchester, above, p. 201, note 3.
2 D. B. i. 1.
3 D. B. i. 238. The custom of Warwick was that when the king made an
expedition by laud 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.
4 D. B. i. 56b. 5 D. B. i. 179.
6 At Chester (D. B. i. 202 b) the twelve civic indices paid a fine if they were
M. H
210 Domesday Book.
The action of this court, however, like the action of other
hundred courts, must as time went on have been hampered by
the growth of seignorial justice. The sake and soke which a
lord might have over his men and over his lands were certainly
not excluded by the borough walls. He had sometimes been
expressly told that he might enjoy these rights ' within borough
and without borough.' It is difficult for us to realize the exact
meaning that ' sake and soke ' would bear when ascribed to a
prelate or thegn who had but two or three houses within the
town. Perhaps in such cases the town houses were for juris-
dictional purposes deemed to be situate within some rural
manor of their lord. But in a borough a lord might have a
compact group of tenants quite large enough to form a petty
court. In such a case the borough court would have the
seignorial courts as rivals, and many a dispute would there be.
At Lincoln one Tochi had a hall which undoubtedly was free
' from all custom ' ; but he had also thirty houses over which
the king had toll and forfeiture. So the burgesses swore ; but
a certain priest was ready to prove by ordeal that they swore
falsely 1 . In these cases the lord's territory would appear in
later times as a little ' liberty ' lying within the borough walls.
The middle ages were far spent before such liberties had become
mere petty nuisances 2 . In the old cathedral towns, such as
Canterbury and Winchester, the bishop's jurisdictional powers
and immunities were serious affairs, for the bishop's tenants
were numerous 3 . Nevertheless, in the great and ancient
boroughs, the boroughs which stand out as types and models,
there was from a very remote time a court, a borough-moot
or portman-moot, which was not seignorial, a court which was a
unit in a national system of courts.
The Of the form that the borough court took we can say little.
oour gb Perhaps at first it would be an assembly of all the free burg-men
or port-men. As its business increased in the large boroughs,
as it began to sit once a week instead of thrice a year, a set
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 horough 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 he formed without the introduction of any new idea.
1 D. B. i. 336. - Hist. Eng. Law, i. G31.
3 Green, Town Life, vol. i. ch. xi.
The Boroughs. 211
of persons bound to serve as doomsmen may have been formed,
a set of aldermen or lawmen whose offices might or might
not be hereditary, might or might not ' run with ' the pos-
session of certain specific tenements. A 'husting' might be
formed, that is, a house-thing as distinct from a ' thing ' or
court held in the open air. Law required that there should
be standing witnesses in a borough, before whom bargains
and sales should take place. Such a demand might hasten
the formation of a small body of doomsmen. In Cambridge
there were lawmen of thegnly rank 1 ; in Lincoln there were
twelve lawmen 2 ; in Stamford there had been twelve, though
at the date of Domesday Book there were but nine 3 ; we read
of four indices in York 4 , and of twelve indices in Chester 5 .
So late as 1275 the twelve lawmen of Stamford lived on in
the persons of their heirs or successors. There are, said a
jury, twelve men in Stamford who are called lawmen because
their ancestors were in old time the judges of the laws (indices
legum) in the said town; they hold of the king in chief; by
what service we do not know ; but you can find out from
Domesday Book 6 . Over the bodies of these, presumably Danish,
lawmen there has been much disputation. We know that
taken individually the lawmen of Lincoln were holders of
heritable franchises, of sake and soke. We know that among
the twelve indices of Chester were men of the king, men of
the earl, men of the bishop ; they had to attend the ' hundred,'
that is, we take it, the borough court. We know no more ;
but it seems likely that we have to deal with persons who
collectively form a group of doomsmen, while individually each
of them is a great man, of thegnly rank, with sake and soke
over his men and his lands ; his office passes to his heir 7 . On
the whole, however, we must doubt whether the generality of
English boroughs had arrived at even this somewhat rudi-
mentary stage of organization. In 1200 the men of Ipswich,
having received a charter from King John, decided that there
1 D. B. i. 189. 2 D. B. i. 336 b. . 3 D. B. i. 336 b.
4 D. B. i. 298. 6 D. B. i. 262 b. 6 R. H. i. 354-6.
7 Besides the well known English books, see a paper by Konrad Maurer,
Sitzungsberichte der Akademie der Wissenschaften zu Miinchen, 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.
142
212 Domesday Book.
should be in their borough twelve chief portmen, 'as there
were in the other free boroughs in England/ who should have
full power to govern and maintain the town and to render
the judgments of its court 1 . Now Ipswich has a right to be
placed in the class of ancient boroughs, of county towns, and
yet to all appearance it had no definite class of chief men
or doomsmen until the year 1200. Still we ought not to
infer from this that the town moot had been in practice a
democratic institution. There may be a great deal of oligarchy,
and oligarchy of an oppressive kind, though the ruling class
has never been defined by law. Domesday Book allows us to
see in various towns a large number of poor folk who can not
pay taxes or can only pay a poll tax. We must be chary of
conceding to this crowd any share in the dooms of the court 2 .
Definition But what concerns the government of the boroughs has
borough f r tne ^ me k een sufficiently said by others. In our few last
words we will return to our first theme, the difference between
the borough and the mere township.
Mediatized We have seen that in Domesday Book a prominent position
is conceded to certain towns. They are not brought under
any rubric which would place them upon the king's or any
other person's land. It must now be confessed that there
are some other towns that are not thus treated and that none
the less are called boroughs. If, however, we remember that
burgesses often are in law where they are not in fact, the
list that we shall make of these boroughs will not be long.
Still such boroughs exist and a few words should be said about
them. They seem to fall into two classes, for they are described
as being on the king's land or on the land of some noble or
prelate. Of the latter class we will speak first. It does not
contain many members and in some cases we can be certain
that in the Confessor's day the borough in question had no
other lord than the king. Totness is a case in point. It now
falls under the title Terra Judhel de Tottenais; but we are
told that King Edward held it in demesne 3 . In Sussex wo
1 Gross, Gild Merchant, ii. 114 ff. ; Hist. Eng. Law, i. 642.
2 D. B. ii. 290, Ipswich: 'Modo vero sunt 110 burgenses qui consuetudinem
reddunt et 100 pauperes burgenses qui non possunt reddere ad geltum Eegis
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.'
3 D. B. i. 108 b.
The Borough*. 213
see that Steyning, Pevensey and Lewes are called burgi 1 ,
Steyning is placed on the land of the Abbot of Fecamp,
Pevensey on that of the Count of Mortain and Lewes on that
of William of Warenne ; but at Lewes there have been many
haws appurtenant to the rural manors of the shire thegns 2 .
In Kent the borough of Hythe seems to be completely under
the archbishop 3 . He has burgesses at Romney over whom he
has justiciary rights, but they serve the king 4 . The 'little
borough called Fordwich ' belonged to the Abbot of S* Au-
gustin. But of this we know the history. The Confessor gave
him the royal two-thirds, while the bishop of Bayeux as the
successor of Earl Godwin gave him the comital one-third 5 .
Further north, Louth in Lincolnshire and Newark in Not-
tinghamshire seem to be accounted boroughs ; they both belong
to the bishop of Lincoln ; but in the case of Newark (which
was probably an old burh} we may doubt whether his title is
very ancient 6 . We are told that at Tatteshall, the Pontefract
of later days 7 , there are sixty 'minute burgesses,' that is, we
take it, burgesses in a small way. Ilbert de Lacy is now their
lord ; but here again we may suspect a recent act of mediatiza-
tion 8 . Grantham in Lincolnshire is placed on the Terra Regis ;
it had belonged to Queen Edith ; there were, however, seventy-
seven tofts in it which belonged to 'the sokemen of the thegns,'
that is, to the sokemen of the thegns of the shire 9 . Then in
Suffolk we see that Ipswich is described at the end of the section
which deals with the royal estates ; a similar place is found for
Norwich, Yarmouth and Thetford in the survey of Norfolk 10 .
But for Dunwich we must look elsewhere. There were bur-
gesses at Dunwich ; but to all seeming the royal rights over
1 Whether the novum burgum mentioned in D. B. i. 17 is Winchelsea or
Eye or a new town at Hastings seems to be disputable. See Round, Feudal
England, 568.
2 D. B. i. 26 b, 27. 3 D. B. i. 4b.
4 D. B. i. 4b. See also, 10 b. 6 D. B. i. 12.
6 D. B. i. 345, 283 b. It has been said that Leofric gave Newark to the see.
7 Dodsworth's Yorkshire Notes, ed. R. Holmes (reprinted from Yorkshire
Archaeological Journal), p. 126.
8 D. B. i. 316 b. The estate is ingeldable and therefore looks like an
ancient possession of the king.
9 D. B. 337 b: ' Toftes sochemanorum teignorum.' Some commentators
have seen here ' sokemen thegus'; but the other interpretation seems far more
probable.
lu Had these towns been described in Great Domesday, they would probably
have been definitely placed outside the Terra Regis.
214 Domesday Book.
the town had passed into the hands of Eadric of Laxfield 1 .
The successor of the same Eadric has burgesses among his
tenants at Eye 2 . There are burgesses at Clare, though Clare
belongs altogether to the progenitor of the lordly race which
will take its name from this little town 3 . But at least in
this last case, the burgesses may be new-comers, or rather
perhaps we may see that an old idea is giving way to a newer
idea of a borough, and that if men engaged in trade or handi-
craft settle round a market-place and pay money-rents to
a lord they will be called burgesses, though the town is no
national fortress. At Berkhampstead 52 burgesses are collected
in a burbium, but they may be as new as the two arpents of
vineyard 4 . We must not say dogmatically that never in the
days before the Conquest had a village become a borough while
it had for its one and only landlord some person other than
the king, some bishop, or some thegn. This may have hap-
pened at Taunton. In 1086 there were burgesses at Taunton
and it enjoyed ' burh-riht,' and yet from a very remote time
it had belonged to the bishops of Winchester. But the cases
in which we may suppose that a village in private hands
became a burgus and that this change took place before the
Norman invasion seem to be extremely few. In these few
the cause of the change may have been that the king by way
of special favour imposed his burhgriS upon the town and
thereby augmented the revenue of its lord 5 .
1 D. B. ii. 311, 312, 385. 2 D. B. ii. 319 b.
3 D. B. ii. 389 b: 'semper unum mercatum modo 43 burgenses.' For
Sudbury, see D. B. ii. 286 b; for Beccles, 369 b.
4 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
kuot of traders clustered outside a lord's castle at Clare or Berkhampstead, at
Tutbury, Wigrnore or Ehuddlan may have for its type rather a French l,<mr<i
than an English burh. Indeed at Khuddlan (i. 269) the burgesses have received
the law of Breteuil.
5 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. K!7
(iv. 233): ' Dast is aerest...8eo men redden into Tautune cirhsceattas and
The Boroughs. 215
As to the boroughs that are regarded as standing on the Boroughs
i > i 1 i , i iri on the
king s land, these also seem to be tew and tor the more part king's lami
they are small. There are burgesses at Maldon 1 ; but Maldon
is not placed by the side of Colchester 2 ; it is described among
the royal estates. There are burgesses at Bristol 3 ; but Bristol
is not placed beside Gloucester and Winchcombe. Perhaps we
should have heard more of it, if it had not, like Tamworth, stood
on the border of two counties. In the south-west the king's
officials seem to be grappling with difficulties as best they
may. In Dorset they place Dorchester, Bridport, Wareham and
Shaftesbury above the rubric Terra Regis 4 , and Ave can not find
that they reckon any other place as a borough. In Devonshire
we see Exeter above the line ; Lidford and Barnstaple, however,
are called boroughs though they are assigned to the king's
land, and (as already said) Totness is a borough, though it is
mediatized and is described among the estates of its Breton
lord 5 . No borough in Somerset is placed above the line, though
we learn that the king has 107 burgesses in Ilchester who pay
him 20 shillings 6 , and that he and others have burgesses at
Bath 7 . Perhaps the space that stands vacant before the list of
the tenants in chief should have been filled with some words
about these two towns. Axbridge, Langport and Alilborne
seem to be boroughs; Axbridge and Langport occur in that
list of ancient fortresses which we have called The Burghal
O
Hidage 8 . Wells was an episcopal, Somerton a royal manor;
we have no reason for calling either of them a borough. In
Hampshire another of the ancient fortresses, Twyneham (the
modern Christ Church) is still called burgus, but seems to
be finding its level among the royal manors 9 . In Wiltshire
Malmesbury and Maryborough are placed above the line. We
learn that the king receives 50 from the burgus of Wilton 10 ,
and we also learn incidentally that various lords have burgesses
in that town ; for example, the bishop of Salisbury has burgesses
in Wilton who belong to his manor of Salisbury 11 . Old Salisbury
(' old Sarum ' as we foolishly call it) seems to be a mere manor
burhgerihtu.' See also K. 1084 (v. 157): ' ut episcopi homines [apud Tantun]
tarn nobiles quam ignobiles...hoc idem ius in omni haberent dignitate quo regis
homines perfruuntur, regalibus fiscis commorantes.'
1 D. B. ii. 5b. 2 D. B. ii. 104. * D. B. i. 1G3.
4 D. B. i. 75. 5 D. B. i. 100, 108 b.
6 D. B. i. 86 b. 7 D. B. i. 87. 8 See above, p. 183.
D. B. 38 b, 44. D. B. C4b. D. B. 66.
216 Domesday Book.
belonging to the bishop; but the king receives its third
penny. He receives also the third penny of Cricklade, which
we have named before now as one of the old Wessex strong-
holds, and several of the county magnates had burgesses
there. On the other hand Calne, Bedwind and Warminster are
reckoned to be manors on the king's land. Burgesses belong to
them ; but whether those burgesses are really resident in them
may not be quite certain 1 . Devizes we can not find. That
puzzles should occur in this quarter is what our general theory
might lead us to expect. In the old home of the West-Saxon
kings there may well have been towns which had long ago
secured the name and the peace of royal burgs, though they
manifested none of that tenurial heterogeneity which is the
common mark of a borough. A town, a village, which not only
belonged to the king but contained a palace or house in which
he often dwelt, would enjoy his special peace, and might
maintain its burghal dignity long after there was little, if
any, real difference between it and other manors or villages
of which the king was the immediate landlord. Already in
1086 there may have been 'rotten boroughs,' boroughs that
were rotten before they were ripe 2 .
Attributes A borough belongs to the genus villa (ttin). In age after
Lrough. age our task is to discover its differentia, and the task is hard
because, as age succeeds age, changes in law and changes in
fact are making the old distinctions obsolete while others
are becoming important. Let us observe, then, that already
when Domesday Book was in the making those ancient
1 The burgesses belonging to Kamsbury are really at Cricklade : D. B.
i. 66.
2 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 bnrh at
Towcester and of a burh at Witham in Essex. We must not indeed contend
that a shire-supported town with tenurial heterogeneity came iuto existence
wherever Edward the Elder or the Lady of the Mercians 'wrought a lurh.'
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 iu
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.
The Boroughs. 217
attributes of which we have been speaking were disappearing
or were fated soon to disappear. We have thought of the
typical borough as a fortified town maintained by a district
for military purposes. But already the shire thegns have
been letting their haws at a rent and probably have been
letting them to craftsmen and traders. Also the time has come
for knight-service and castles and castle-guard. We have
thought of the typical borough as the sphere of a special
peace. But the day is at hand when a revolution in the
criminal law will destroy the old system of wer and wite and
hot, and the king's peace will reign always and everywhere 1 .
We have thought of the typical borough as a town which has
a court. But the day is at hand when almost every village will
have its court, its manorial court. New contrasts, however, are
emerging as the old contrasts fade away. Against a back-
ground of villeinage and week-work, the borough begins to
stand out as the scene of burgage tenure. The service by
which the burgess holds his tenement is a money rent. This
may lead to a large increase in the number of boroughs. If a
lord enfranchises a manor, abolishes villein customs, takes
money rents, allows his tenants to farm the court and perhaps
also to farm a market that he has acquired from the king, he
will be said to create a liber burgus 2 . Merchant gilds, elected
bailiffs, elected mayors and common seals will appear and will
complicate the question. There will follow a time of un-
certainty and confusion when the sheriffs will decide as suits
them best which of the smaller towns are boroughs and which
are not.
If the theory that we have been suggesting is true, all or ciassifica-
very nearly all our ancient boroughs (and we will draw the line boroughs.
of ancientry at the Conquest) are in their inception royal
1 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).'
- 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.
218 Domesday Book.
boroughs. The group of burgesses when taken as a whole
had no superior other than the king. His was the peace that
prevailed in the streets; the profits of the court and of the
market were his, though they were farmed by a reeve. Rarely,
however, was he the landlord of all the burgesses. In general
not a few of them lived in houses that belonged to the thegns
of the shire. We must be careful therefore before we speak of
these towns as ' boroughs on the royal demesne.' For the more
part, the compilers of Domesday Book have refused to place
them on the Terra Regis. In course of time some of them will
be currently spoken of as boroughs on or of the royal demesne.
The rights of those who represent the thegns of the shire will
have become mere rights to rent, and, their origin being
forgotten, they will even be treated as mere rent-charges 1 .
The great majority of the burgesses will in many instances be
the king's immediate tenants and he will be the only lord of that
incorporeal thing, ' the borough,' the only man who can grant it
a charter or let it to farm. But we must distinguish between
these towns and those which at the Conquest were manors on
the king's land. These latter, if he enfranchises them, will be
boroughs on the royal demesne in an exacter sense. So, again,
we must distinguish between those ancient boroughs which the
king has mediatized and those manors of mesne lords which are
raised to the rank of boroughs. We have seen that from the
ancient borough the king received a revenue of tolls and fines.
Therefore he had something to give away. He could mediatize
the borough. Domesday Book shows us that this had already
been done in a few instances 2 . At a later time some even of
the county towns passed out of the king's hands into the hands
of earls. This happened at Leicester and at Warwick. The
earl succeeded to the king's rights, and the burgesses had to go
to the earl for their liberties and their charters. But such
cases are very distinct from those in which a mesne lord grants
1 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.
2 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.
The Boroughs. 219
an enfranchising charter to the men of a place which has
hitherto been one of his manors, and by speaking of boroughs
which are ' on the land of mesne lords ' we must not confuse
two classes of towns which have long had different histories.
In the ancient boroughs there is from the first an element that
we must call both artificial and national. The borough does
not grow up spontaneously ; it is made ; it is ' wrought ' ; it is
' timbered.' It has a national purpose ; it is maintained ' at
the cost of the nation ' by the duty that the shire owes to it.
This trait may soon have disappeared, may soon have been
forgotten, but a great work had been done. In these nationally
supported and heterogeneously peopled towns a new kind of
community might wax and thrive.
ESSAY II.
ENGLAND BEFORE THE CONQUEST.
Object of 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 thingsof the law, of k>gal idea* and legal forms,
and once for alT^vve^may protest that we have no wish to over-
estimate 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 ex-
plained 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 BO
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 tin-
feudalizing process, this will not be because we think it the
only phase, it will be because we think that too little attention
England before the Conquest. 221
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.
It can not but be, however, that this part of our work
should be controversial, though it need not be polemical. We contro-
are told that ' in spite of all the labour that has been spent
on the early history of England, scholars are still at variance Saxon
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 1 '. 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
.r.0 nfa la . 1 C f ....... |, w j t h thriri
labour tilled their own -saiV-Qf~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
1 Ashley, Introduction to Fustel de Coulanges, Origin of Property in Land,
p. \ii.
222 England before the Conquest.
large tracts of the soil, not in these free peasants taken as
individuals, but in free village communities.
The Roma- Now we will say at once that the first of these theories
nesque . .
theory un- we can not accept it it be put forward in a general form, if
e ' 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. Bub against
the hypothesis that this was the general case the English
language and the names of our English villages are the un-
answered 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 1 . 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* has been refuted, we
iO Rfl y thn.h our true villages, the nucleated
villages with large ' open fields,' are not Celtic, are not Roman,
but arevary purely and "typically" German. But this is not
all. Hereafter we" ""shall urge some other objections. The
1 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.
- Meitzen, Siedelung und Agrarwesen der Germanen, especially ii. 120 ff.
England before the Conquest. 223
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 sub-
stitutes for peasant proprietorship the manorial organization.
Though we can not deal at any length with a matter which Feudalism
lies outside the realm of legal history, we ought at once to stage.
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^civilizatton, the separation of employments,
"the division of labour, the possibility of national defence, the
possibility of art7science, J 1iteTatttre-ftBd beamed 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.
224 Enyhuul before the Conquest.
sm This leads to a remark which concerns us more deeply. As
and us re- regards the legal ideas in which feudalism is expressed a general
question may be raised. If we approach them from the stand-
point 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 Now, no doubt, from one point of view, namely that of
<""ss irfthe urnversa l history, we do see confusion and retrogression. Ideal
history of 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
England before the Conquest. 225
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 ap-
prehended ? 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?
No one perhaps to such a question would boldly say : Yes. Tlie con -
. . ZilCt Ol ORT-
And yet, when it comes to a treatment of particulars, an barism and
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 pre-
cision 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
M. 15
226
England before the Conquest
Our ma-
terials.
been progress not retrogress. Words that Roman lawyers
would have understood give way before words which would
have been nonsense to them, feoff amentum, liberatio seisinae
and the like. This is as it should be. Men are learning to
say what they really mean.
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 yEthelbert 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 1 .
The lands
of the
churches.
1. Book-land and the Land-book
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
1 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 conie from the
British Museum and the two which come from the Ordnance Survey. We are
yet a long way oft 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.
Book-land and the Land-book. 227
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 1 .
Now the answer that they give to our question is this : How the
cliiircliGS
With but few exceptions, the donors of these lands were kings acquired
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
1 Heming's Cartulary was published by Hearne. It has been said that
some of the documents in this collection which Kemble accepted as genuiue
commit the fault of supposing that the old episcopal minster was dedicated to
S'. Mary, whereas it was dedicated to S'. Peter. See Robertson, Historical
Essays, 195. However, where Heming's work can be tested it generally gains
credit.
152
228 England before the Conquest.
viculuni qui nnncupatur aet Segcesbaruue iiii. inansiones, 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 1 . 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 2 . 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 JEthelwealh king of the South Saxons gave to
Bishop Wilfrid the land of eighty-seven families in the pro-
montory of Selsey, and among its inhabitants were two hundred
and fifty male and female slaves 3 . This gift comprised a
spacious tract of country ; it comprised what then were, or
what afterwards became, the sites of many villages 4 . 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 ^Ethelheard
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 S*. Gyres, Upton Pyne,
Brampford Speke, Hittesleigh, Drewsteignton, Colebrooke,
Morchard Bishop, Sandford, Kennerleigh and the modern
parish of Sherwood, part of Cheriton Bishop, and possibly the
1 D. B. i. 173 b ; K. 131 (i. 158); B. i. 311.
2 D. B. i. 127; K. 230 (i. 297) ; B. i. 558.
3 Hist. Eccl. iv. 13 (ed. Plummer, i. 232).
4 See the spurious charter of Caed walla, K. 992 (v. 32) which purports to
show where the 87 manses lay. According to it, the gift comprised some placea
which lay well outside the promontory of Selsey. But more of this hereafter.
Book-land and the Land-book. 229
whole of Clannaborough.' He disposed of the whole and more
than the whole of the modern ' hundred ' of Creditor! 1 . 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
cii'itati quae vocatur Hat Bathu*. 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 3 . 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.
Let us then examine with some care the charters that come The
to us from the earliest period, a period which shall begin with books,
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 under-
stood. 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 S 1 . Peter 4 .' In other cases the lay donee is to hold
the land 'by church right' or 'by minster right 5 .' 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 6 .
1 Napier and Stevenson, Crawford Charters, p. 43. Some of the best work
that has been done towards connecting Domesday Book with the A.-S. laud-books
will be found in a paper on the Pre-Domesday Hide of Gloucestershire : Trans-
actions of Bristol and Gloucestershire Arch. Soc. vol. xviii., by Mr C. S. Taylor.
2 K. 12 (i. 16); B. i. 69; H. & S. 129 ; Plummer, Bede, ii. 247. The charter
itself is open to grave suspicion.
3 C. S. Taylor, The Pre-Dornesday Hide of Gloucestershire.
4 E. p. 4; B. M. Facsim. iv. 1.
5 K. 83 (i. 100): 'in possessionem aecclesiasticae rationis et regulae...in ius
monasticae rationis.' K. 90 (i. 108) : ' in possessionem iuris ecclesiastic!.'
K. 101 (i. 122): 'ut sit aecclesiastici iuris potestate subdita in perpetuum.'
K. 54 (i. 60) is a gift to an abbess, for compare K. 36 (i. 41). We here
230 England before the Conquest.
Exotic These charters are documents of ecclesiastical origin ; they
oftLebook. 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 eccle-
siastical 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 1 in sua nihilominus firmitate.' Such words may look
somewhat out of place in their new surroundings ; but they are
part of a venerable formula 2 .
The book But what is the model to which in the last resort these
confer" S documents go back ? A conveyance by a Roman landowner.
ownership. jj e ^^ j n fae land full and absolute domlnium 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 3 . 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
leave out of account the early lease for lives granted by Bp. Wilfrid, K. 91 (i. ID't),
an important document, but one which must be mentioned in another context.
1 An accusative absolute.
2 Eadric's deed is K. 27 (i. 30). See also Hlothar's charter K. 16 (i. 20) and
Suaebraed's, K. 52 (i. 59) ; B. M. Facs. i. plates 1, 3. With these should be
compared the forms in Koziere, 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.
a K. NOB. 12, 16, 32, 36, 48, 52, 56, 67, etc.
Book-land and the Land-book. 231
ealdorman, for they also have souls and may desire salvation 1 .
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 land-
owner and that he is going to transfer landownership. The
land in question is tellus mea* or it is terra iuris mei 3 . 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 tarn tu quam posteri tui
teneatis, possideatis et quaecunqiie volueris de eadem terra facere
liberam habeatis potestatem*. 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 5 . Or again : aeternaliter et perseverabiliter
possideat abendi vel dandi cuicumque eligere voluerit 6 . But it is
needless to multiply examples.
No doubt then, if we bring to the interpretation of these Does the
/> i- f 1-1 kook reall y
instruments the ideas of an earlier or of a later time, the ideas confer ow-
of ancient Rome or of modern Europe, we see the king as a m
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.
But if we loyally accept this seeming fact and think it over, The hook
to what conclusions shall we not be brought, when we remember veys'a su-
periority.
1 K. 131 (i. 158). 2 K. 1. 3 K. Nos. 27, 35, 77, 79, 999, 1006, 1007.
4 K. 35 (i. 39) ; E. 13 ; B. M. Fe.cs. i. 2.
5 K. 52 (i. 59) ; E. 16 ; B. M. Facs. i. 3.
6 E. 4 ; B. M. Facs. iv. 1.
232 England before the Conquest.
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 Let us for a moment remember that the wording of a
ogy ' 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
Book-land and the Land-book. 233
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 1 . 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.
But it will be said that all this is the result of ' feudalism.' Convey-
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 ' ?
We will glance for a moment at two transactions which niustra-
took place near the end of the seventh century. Bede tells
how ^Ethelwealh king of the South Saxons was persuaded to
become a Christian by Wu If here 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 2 . Then the same Bede
1 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.'
2 Hist. Eccl. iv. c. 13 (ed. Plumuier, i. 230). In the 0. E. version the words
are: 'Ond se cyning...him to godsuna onfeng and to tacne tJaere sibbe him twa
234 England before the Conquest.
tells us that the same ^Ethelwealh 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 1 . A
modern reader will perhaps see here two very different trans-
actions. 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 ^Ethelwealh had to give
and gave to Wilfrid was what in our eyes would be far rather
political power than private property ?
What had But over the free land of free landowners what rights had
give? mg 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 jus-
ticiary 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 tributwm, vectigal, to something that he calls paxta*,
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 Now it must at once be confessed that the charters of this
rights. e early period seldom suggest any such confusion between po-
litical 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
mseg)>e forgeaf, ftset is Wiht ealond and Meaiiwara mee^e on West Seaxna
geode.'
i Hist. Eccl. iv. c. 13 (ed. Plummer, i. 232).
Book-land and the Land-book. 235
eighth century gave to the church of Rochester twenty plough-
lands, 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 1 .' 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,
A little more light is thrown on the matter by the first Military
,,,,., f service as a
rude specimens ot a clause that is to become common in alter burden on
times, the clause of immunity. Already in the seventh century laud<
\Vulfhere 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 2 .' 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 3 .' ^Ethelbald 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 4 .' Yet more instructive, if we may rely
upon it, is the foundation charter of Evesham Abbey. ^Ethel-
weard has given twelve manses : he then says, ' I decree that
for the future this land be free from all public tribute, pur-
veyance, 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 S l . 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
1 K. 114 (i. 139); E. 49: 'et cum omni tribute quod regibus inde dabatur.'
So by a deed of A.D. 762, K. 109 (i. 133), B. i. 272, a thegn states that king
^Ethelbert gave him a villa ' cum tribute illius possidendam ' and then proceeds
to give this villa to a church ' cum tribute illius.'
2 E. 4 ; B. M. Facs. iv. 1 : ' et semper liber permaneat omnibus habentibus
ab omnibus duris secularibus, notis et ignotis, praeter arcein et pontem ac
vulgare militiam.'
3 K. 77 (i. 92); E. 24; B. M. Facs. i. 6: 'Et ius regium in ea deinceps
nullum repperiatur omnino, excepto dumtaxat tale quale generate est in univer-
sis ecclesiasticis terris quae in hac Cantia esse noscuntur.'
4 K. 90 (i. 108); E. 40: 'Et ut ab omni tribute vectigalium operum onernm-
que saecularium sit libera in perpetuum, pro mercede aeternae retributionis,
regali potestate decernens statuo ; tantum ut deo omnipotent! ex eoJem agello
aecclesiasticae servitutis famulatum impendat.'
23G England before the Conquest.
have pasture for fattening one herd of pigs, but beyond this
no pasture shall be setr out for any prince or potentate 1 .' 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 burn. 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 nut to be free
of military service ' has a meaning. But after all, land never
lights : 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 de-
claring 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 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 publicn, opera regia, onera saecularia, there is tri-
butum, 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, hiu
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 land-
1 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 ' ?
Book-land and the Land-book. 237
owners ; 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 terrain iuris
mei. He declares, it will be observed, that the land is to bo
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.
It is permissible to doubt whether modern historians have Nature of
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 1 .' 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-.
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
1 Ine, 70, 1.
2 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.
238 England before the Conquest.
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 1 . 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 2 . 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 (servicinni
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
1 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 Kiere 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 laud 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 ia
from the chief house, but not from the land that they have set out to husband-
men. These last are to enjoy a secure title. We must leave to linguists the
question whether we have rightly understood the difficult seten ; but t
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.
2 Kemble, Saxons, i. 204-8; ii. 58.
Book-land and the Land-booh 239
extent rooted in the soil, that the amount due from each
hundred (herad) is fixed 1 . There is a great deal to make us
think that at a quite early time in England such arrange-
ments 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 2 .
Whatever be the origin of the king's feorm and if we Tribute
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 3 . 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 4 . 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 5 . Then again, in the eleventh
1 Karl Lehmann, Abhandlungen zur Germanischen Kechtsgeschichte, 1888 ;
Liber Census Daniae, ed. 0. Nielsen, 1879.
2 Cnut's law (11. 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 lauds ; a vague claim to ' purveyance ' is
abolished, but will appear again after the Conquest.
3 In the A.-S. Chron. ann. 091, 1007, 1011, the Danegeld appears as a gafol ;
but this is the common word for a rent paid by a tenant to his landlord.
4 Kemble, Saxons ii. 73-6.
5 Already in 749 ^Ethelbald of Mercia in a general privilege for the churches
(H. & S. iii. 380) says, ' Sed nee hoc praeterinittendum est, cum necessarium
240 England before the Conquest.
century \ve 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 Cambridge-
shire 1 . We are told in a general way that the thegn owes fyrd-
fare, burh-bot and brycg-bot, 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 2 . 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 S*. Edmundsbury that they
may levy the tax from their men and keep it for their own
use 3 . 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 4 .
Mixture of Not that this is always the case. Very possible is it that
andsapen- fr m the first the king had villages which were peopled mainly
by his theows and Isets, and intertribal warfare may have
increased their number. But the charters, for all their ap-
parent precision, will not enable us to distinguish between these
cases and others in which the villages are full of free land-
constat aecclesiis Dei, quia JSthelbaldus Bex, pro expiatione delictorura suoruin
et retributione mercedis aeternae, famulis Dei propriam libertatem in fructibus
silvarum agrorumque, sive in caeteris utilitatibus fluminum vel raptura piscium,
habere donavit.'
1 See above, p. 55. 2 Rectitudines c. 1 (Schmid, App. III.).
3 See above, p. 169.
* Schroder, Die Franken und ihr Recht, Zeitsch. d. Savigny Stil'tung,
iii. 62-82, has argued that, from the first times of the Prankish settlement
onwards, the king has a Bodenregal, an Obereigenthum over all land.
Book-land and the Land-book. 241
owners 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 niansi 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.'
We have been suggesting and shall continue to suggest The king's
that at a very early time, a time beyond which our land-books su
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 re-
bellions; 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
M. 16
242 England before the Conquest.
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 bar-
barous 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 In its original form and when put to its original purpose
right. 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 lay-
men 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 con-
struct 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 eccle-
siastics, 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 ivproves the
Book-land and the Land-book. 243
prelates for subscribing the books 1 . 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 uuder-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 2 .' There-
upon 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 3 .
We must wait for a later age before we shall find the Book-land
kings freely booking lands to their thegns without any allusion mell t.
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 4 .' Some piety in the harangue (arengd)
is necessary in order to lead up to the anathema and the cross ;
1 Epistola ad Ecgbertum (ed. Plummer, i. 405).
2 K. 131 (i. 158).
3 K. 137 (i. 1G4) ; B. M. Facs. i. 10. A few words are illegible, but the land
is given 'in ius ecclesiasticae liberalitatis in perpetuum possicl[endam].'
4 /Ethelwulf makes a grant to a thegn, K. 269 (ii. 48), 'pro expiatione
piaculoruin meorum et absolutione criminum meorum.' In course of time the
piety of the recitals becomes more and more perfunctory. It becomes a philo-
sophic reflection on the transitoriness of earthly affairs and finally evaporates,
leaving behind some commonplace about the superiority of written over unwritten
testimony.
1G-2
244 England before the Conquest.
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 1 under the
sanction of the anathema.
2. Book-land and Folk-land.
What is \vi t h 'book-land' is contrasted 'folk-land.' Therefore of
folk-land ? '
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 2 .
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 The term ' folk-land ' occurs but thrice in our texts. It
in the . . mi
texts. occurs in one law and in two charters. Ihe one law comes
from Edward the Elder 3 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 4 . Then we have the
two charters. Of these the earlier is a deed of ^Ethelbcrt of
Kent dated in 858 5 . The king with the consent of his great
men and of the prelates gives to his thegn Wulflaf five plough-
lands at Washing well (aliquam partem terrae iuris mei) in
exchange for land at Marsham. He declares that the land
1 Bede (ed. Plummer, i. 415): ' ipsas quoque litteras privilegiorum suorum. 1
3 Vinogradoff, Folkland, Eng. Hist. Eev. viii. 1.
3 Edw. i. 2. 4 Schmid, p. 575.
6 K. 281 (ii. 64); B. M. Facs. ii. U3.
Book-land and Folk-land. 245
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 ^Ethelbert the king granted to Wulflaf his thegn in ex-
change 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 other charter is of greater value. It is the will of The will of
the Eaklorman Alfred and comes from some year late in the '
ninth century 1 . He desires in the first place to state who man -
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 ^Ethel-
wald three hides of book-land: two hides on Hwastedune [Wad-
don], 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-laud.
1 K. 317 (ii. 120); T. 480; B. ii. 195.
246 England before the Conquest.
Comment We must examine Alfred's will somewhat carefully. The
will. S 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 The king like other persons can have both folk-land, and
landuf book-land. We have just heard of ' the king's folk-land ' : we
himself. turn j. Q ^ e i ni p 0r tant deed whereby King ^Ethelwulf booked
land to himself 1 . 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 unrighteous-
ness ; therefore I King ^Ethelwulf 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 ^Ethelwulf/
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
1 K. 260 (ii. 28) ; B. ii. 33 ; B. M. Facs. ii. 30.
Book-land and Folk-land. 247
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-laud
is land belonging to the people 1 .
Another weighty argument is derived from the fact that The con-
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
^Ethelwulf 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 dif-
ferent ways.
For this purpose we may divide our charters into three Consent
periods. The first begins with the few genuine charters of nessln the
the seventh century and ends in the reign of Egbert, the j^ 1 "^
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
1 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. 115.
248 England before the Conquest.
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 Cemvulf of Mercia and Egbert of Wessex ; it grows
very rare under ^Ethelstan 1 . 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 in-
heritance 2 . 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 ^Ethelstan'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 con-
sentientibus 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, con-
firmavi, 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 3 , 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 Now during our earliest period instruments which contain
of the . . .....
earliest in conjunction with their operative words any allusion to the
books.
1 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.
2 A.D. 838, K. 1044 (v. 90): Egbert gives 'aliquantularn terrae partem meae
propriae hereditatis...cum consilio et testimonio optimatum meorum.' AD. 863,
K. 1059 (v. 116) : JLthelred ' cum consensu ac licentia episcoporum ac principuui
meorum ' gives ' aliquam partem agri quae ad me rite pertiuebat.'
3 Stubbs, Const. Hist. i. 212.
Book-land and Folk-land. 249
consent of the great men of the realm are exceedingly rare 1 .
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 iny principes and have requested them
to do the like 2 .
I have impressed the sign of the holy cross and requested fit and proper
witnesses to subscribe 3 .
I have confirmed this gift with my own hand and have caused fit and
proper witnesses, my companions (commites\ to confirm and subscribe 4 .
This formula, undoubtedly of foreign origin, was common
in Kent 5 . 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 thia
privilege of the aforesaid estate (praedictae possessionis privilegium^.
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 arid
subscribed, or perhaps he has confirmed 7 .
1 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 .Ethelbald
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.
- K. 1 (i. 1) ; A.D. 604. .Ethelbert for Rochester.
3 K. 43 (i. 50) ; B. i. 140 : A.D. 697, Wihteed. K. 47 (i. 54) ; E. 17 ; B. M.
Facs. i. 4: Wibtraed. K. 77 (i. ( J2) ; E. 24; B. M. Facs. i. 6: A.D. 732,
.Ethelbert. K. 132 (i. 160); E. 54; B. M. Facs. ii. 4: A.D. 778, Egbert.
4 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.
5 K. 157 (i. 189), Offa of Mercia uses this eschatocol, but in a Kentish gift,
e K. 1006-7 (v. 47-8) ; B. i. 256-7. 7 K. 79 (i. 95).
250 England before the Conquest.
Coufirma- Now we ought not to draw inferences from these phrases
attesta- 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 1 . 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 chan-
cellor, 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 2 . 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 3 .
Now we are not saying that the magnates, more especially the
bishops, who attested these ancient charters thought of them-
selves 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 4 . A similar development
1 Brunner, Eechtsgeschichte der Rom. 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
Bet 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.'
2 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.
3 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.
4 The transition is marked by the^ollowing 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 optimatcs and principes. K. 118,
Uhtred of the Hwiccas makes a grant with the consent and licence of Offa king
Book-land and Folk-land. 251
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 1 .
Perhaps from the first in England the cross of at least one Function
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 2 . 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,
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 no-
ininapro firmitatis stabilirnento hie infra notabo.' A clause of this kind becomes
common with Offa, see K. 134, 137, 138, 148, 15], 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.
1 Bresslau, Urkundenlehre, i. 697.
2 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.
252 England before the Conquest.
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 1 . 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 2 .
The king Of some value though this 'constitutional check' may have
people'^ been, we can not regard it as a relic of a time when there was
laud. } an( j wn i c h 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.
1 See William's charter for Fecamp, Neustria Pia, p. 224.
2 A.D. 692-3, K. 35 (i. 39) ; B. M. Facs. i. 2 : a grant by ' Hodilredus pareus
Se,bbi...cum ipsius consensu'; 'ego Sebbi rex Eastsaxonorum pro confirmatione
subscripsi.' A.D. 704, K. 52 (i. 59); B. M. Facs. i. 3: 'Ego Sueabraed rex
Eastsaxonorum et ego Paeogthath cum licentia ^Edelredi regis.' A.D. 706,
K. 56 (i. 64), 'Ego /Ethiluueard subregulus...consentiente Coenredo rege Merci-
orum.' A.D. 721-46, K. 91 (i. 109), ^Ethelbald 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 regulux, 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 Merci-
orum.' A.D. 791? K. 1016 (v. 54): 'Ego Aldwlfus dux S u$- Saxon um... cum
consensu et licentia Offae regis Merciorum.'
Book-land and Folk-land. 253
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.
Some historians have supposed that at the outset there was King's lami
a clear distinction between the king's private estates and those i a nd.
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 1 . 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.'
As to the king, it would be on his death that the necessity Fate of the
of drawing some distinction between his two capacities would on'ilis
first present itself. Perhaps a brother of his would be elected death-
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. How-
ever, 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
1 K. 113 (i. 137).
254 England before the Conquest.
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 1 .
The new In one of his charters yEthelred the Unready is made to tell
the g oid a long and curious story 2 : ' My father, king Edgar, gave certain
err ' 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 lauds 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
1 K. 314 (ii. 112); 1067 (v. 127); Liber de Hyda, 57. On the death of
JEthelbald, two of his sons, ^thelred and Alfred, seem to have made over the
lands which had been devised to them by their father to ^Ethelbert, the reigning
king, so that he might enjoy them during his life. Then again, on 2Ethelbert's
death, Alfred would not insist upon a partition but allowed his share to remain
in the possession of jEthelred, 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.
2 K. 1312 (vi. 172).
Book-land and Folk-land. 255
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 ^Ethelred ' quam rern si iuste aut iniuste fecerint
ipsi sciant 1 .' There can be but little law about such matters so
long as the title to the kingship is indefinable 2 .
This distinction between the lauds which would pass from Ancient
king to king and the lands which would pass from the king to and its im-
his heirs or to his devisees may have been complicated with mumt y-
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 jiEthelbert 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.
If the folk-land was the land of the people and if the king Rights of
when he booked land to a church or a thegn was usually booking 1" national
land.
1 The violated books are in Chron. Abingd. i. 314, 317, 334.
2 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.
256 England before the Conquest.
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, tuns, 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 ^Ethelbert 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 vectiyal paid to the king is to be regarded as rent
paid to the nation, that the opera regia, the victus, the pastas,
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
Book-land and Folk-land. 257
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.
We turn once more to Edward's law. Land, it would seem, Book-land
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.
Edward's law speaks as though it were dealing with two Kinds of
different kinds of land. But really it is dealing with two kinds of
different kinds of title. We, and even our statutes, habitually ng **
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,
M. 17
258
England before the Conquest.
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 distinc-
tion 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.
Import-
ance of
seignorial
justice.
Theory of
the modern
origin of
seignorial
justice.
3. Sake and SoJce.
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-se'ated 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.
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 doctrim-,
a version which has been elaborately set forth in a learned and
spirited essay 1 . On the eve of the battle of Hastings a sei-
gnorial court was still a new thing in England. It was a Norman
1 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
Sake and Sake. 259
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 s6cn
means jurisdiction. Socn 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 1 !
Now it will not be disputed that in Domesday Book and Sake and
the Leges Henrici this distinction is obliterated. Soke means Norman* 1
jurisdiction and 'sake and soke' is but a pleonastic phrase, which age>
means no more than soke 2 . 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 gran ted 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.
For one moment longer we may dwell on the indisputable lessor's
writs.
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.
Kernble'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. Ziukeiseu, Die Anfange der Lehngerichtsbarkeit
in England (1893, a Berlin doctoral dissertation), criticizes Mr Adams's theory.
1 Essays, pp. 43-4. 2 See above, p. 84.
172
260 England before the Conquest.
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. Some-
times he gives them the hundredal jurisdiction over lands that
are not their own. Thus to S b . 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
S 4 . Benet neither by tenure nor by personal commendation 1 .
Again, he concedes that the donee's tenants shall be quit of
shires and hundreds 2 . 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 1 .
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 S*. Edward.
Cnnt's Now the theory which would make him an innovator in
this matter receives a rude shock from a writ of Cnut 4 . The
king announces that the Archbishop of Canterbury is to be
worthy throughout his lands of his sake and soke and grithbrice,
hamsocn, foresteal, iufangennethef and flymena-fyrmth. Until
1 K. 853 (iv. 208) ; E. 343.
2 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. pi. 9.
3 Charter for S'. Edmund's, K. 1346 (vi. 205). See the account of Bury
S*. Edmunds in D. B. ii. 372 : ' et quaudo in hundreto solvitur ad geltum 1 lib.
tune inde exeunt 60 den. ad victum monachorum. '
4 First printed from a copy in the MacDurnan Gospels by J. 0. 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.
Sake and Sake. 261
the genuineness of this writ, which does not stand quite alone 1 ,
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.
Having seen what Cnut could do upon occasion, we turn to Cnut'siaw.
the famous passage in his dooms which declares what 'rights
the king has over all men 2 .' 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 any-
thing 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.
Xu\v express grants of sake and soke first become apparent The book
to us in documents of a certain class, a class that we do not writ,
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
1 See the writ for S'. 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. 13SO (vi. 192), which may have a genuine basis.
2 Cnut, ii. 12 (Schmid, p. 276).
262 England before the Conquest.
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 some-
times, 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 Now these formal differences correspond more or less
lodTaud exactly to a substantial difference. As every modern lawyer
writ - 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
Sake and SoJce. 263
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 1 . 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 2 . 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 instru-
ments 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 3 . In short before
1 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.
2 Brunner, Carta nnd Notitia (Commentationes in honorem T. Mommsen) ;
Biunner, Zur Rechtsgeschichte der Rom. u. Germ. Urkunde.
s 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
2G4 England before the Conquest.
the end of the twelfth century, the writ-form or letter-form
with its salutation, its ' Know ye,' its air of conveying in-
formation 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- But to represent this as a contrast between English
writs" instruments and Norman or French instruments would be a
I 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 ^Elfmaer,
^Ethelric the shireman 'and all my thegns twelvehinde and
twihinde.' He tells them that he has confirmed the arch-
bishop's liberties and threatens with the pains of hell any one
who infringes them 1 . We have a writ from ^Ethelred the
Unready, and a remarkable writ it is. He addresses ^Elfric
the ealdorman, Wulfmaer and ^Ethelweard and all the thegns
in Hampshire and tells them how he has confirmed the
liberties of bishop yElfheah and how large tracts of land are to
be reckoned as but one hide an early example of ' beneficial
hidationV 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,
witnessed by a number of the king's councillors, while Teste Melpso does for
letters patent. This distinction is coming to the front about the year 1200.
1 K. 731 (iv. 9) ; T. 308.
2 K. 642 (iii. 203) ; compare D. B. i. 41.
Sake and SoJce. 265
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 1 .
We may say then that the appearance of words clearly and Sake and
indisputably conceding jurisdictional rights is contemporaneous w hen writs
with the appearance of a new class of diplomata, namely royal a Pi >ear -
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
1 The Conqueror's charter for Exeter reproduced in Ordnance Facsimiles,
vol. ii. is a fine specimen of the solemn charters referred to above. A consider-
able 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, Bufus 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 S'. 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 Tessou founded the abbey with the consent of
Duke William, also a charter of Duke William, ' quae cartae crucibus sunt
signatae secundum antiquatn 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 astipu-
latione sanctae crucis et appositione sigilli mei ' ; Ibid. ii. 385-6, Earl Hugh
confirms a gift 'non solurn sigillo meo sed etiarn 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.
266 England before the Conquest.
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 S l . 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
grisbrice and hamsocne
and foresteal
and alle oSre gerihte
inne tid and ut of tide
binnan burh and butan burh
on strsete and of strsete.
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 1 .'
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
1 The curious formula, Schmid, App. XL, 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.
Sake and SoJce. 267
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.
The traditions, the legends, current in later times, can not Tradi-
be altogether neglected. The prelates of the thirteenth century deuce of
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 1 ; the Abbot of Ramsey claimed the
hundred of Clackclose in Norfolk by grant of King Edgar 2 .
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 3 . 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
i E. H. ii. 231. 2 R. H. ii. 458. D. B. i. 172 b.
268 England before the Conquest.
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 1 . Now the story current in
S l . 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 dementia, which, after many centu-
ries, was to prove the King of England's dominion over the
narrow seas 2 . 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 3 . 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) 4 , 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 5 . Upon these we will not rely : the fact remains
that in Domesday Book there appears this hundred of Oswalds-
law, 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
1 R. H. ii. 283.
2 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.
3 A record of 825 (H. & S. iii. 590-601) 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
S'. 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 Wulf-
ringtune, 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.
4 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.
5 ' cum tolle et teame, saca et socne, et infangenetheof, et proprii iuris
debitum transgressionis, et poenam delicti quae Anglice dicitur oferssewnesse,
et gyltwyte.'
Sake and Soke. 269
pieces of it lie surrounded by Gloucestershire. In 108C 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 1 .' 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 re-
written 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 2 .
We may now turn to the genuine books of an earlier time Critic-ism of
and patiently examine their words. It is well known that books.
1 D. B. i. 172 b : ' Ecclesia S. Mariae de Wirecestre habet unum hundret
quod vocatur Oswaldeslau in quo iacent ccc. hidae. De quibus episcopus ipsiua
ecclesiae a constitutions antiquorum temporum habet omnes redditioues soch-
arum et omnes consuetudines inibi pertinentes ad dominicum victum et regis
servitium et suum, ita ut nnllns vicecomes ullam ibi habere possit querelam,
nee in aliquo placito, nee in alia qualibet causa. Hoc testatur totus comitatus.'
2 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
JKthelwold and, if genuine, is closely connected with the Oswaldslaw charter;
both testify to unusual privileges obtained by the founders of the new
monasticism.
270 England before the Conquest.
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/ 'freols'; the book is a fredls-bdc 1 ;
it may be that he is willing to pay money, to give land, to
promise prayers in return for this franchise, this libertas*.
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 3 .
The clause Now in an ordinary case the clause of immunity will first
uity. 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 4 . 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 5 ? True, that in course of time we may find this
1 E.g. K. 1298 (vi. 149), ' Dis is seo freolsboc to '5an mynstre ret Byrtune.'
2 E.g. K. 277 (ii. 58), 278 (ii. 60).
8 A.D. 875 ; K. 306 (ii. 101) ; B. ii. 159.
4 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 ilia libera ab omni
saecularis rei negotio, praeter pontis, arcisve restauratiouem et contra hostes
communem expeditionem.'
5 Occasionally the contrast is expressly drawn, e.g. by J2thelbald, K. HO
(i. 108): 'ut ab unnii tribute vectigalium operum onerumque saeculariitm sit
Sake and SoJce. 271
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 1 , and we may well believe that the
phraseology of the books, which in substance remains unaltered
irom century to century, was primarily adapted to pious gifts.
It is by no means improbable that in the middle of the eighth
century ^Ethelbald of Mercia by a general decree conceded to
all the churches of his kingdom just that freedom from all
burdens, save the trinoda necessitous, 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 Wihtrsed 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*. 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,
libera...tantum ut Deo omnipotent! ex eodem agello aecclesiasticae servitutis
famulatum inpendat.'
1 See above, p. 229.
2 Privilege of Wihtreed, A.D. 696-716, Haddan and Stubbs, iii. 238 : 'Adhuc
addimus maiorem libertatem. Inprimis Christi ecclesiae cum omnibus agris ad
earn pertinentibus, similiter Hrofensi ecclesiae cum suis, caeterisque praedictis
omnibus ecclesiis Dei nostri, subiciautur pro salute animae meae, meorumque
praedecessorum, et pro spe caelestis regni ex hac die, et deinceps concedimus et
douamus ab omnibus difficultatibus saecularium servitutis, a pastu Eegis,
principum, comitum, nee non ab operibus, maioribus minoribusve gravitatibus :
t ab omni debitu vel pulsione regum tensuris liberos eos esse perpetua libertate
statuimus.' See also the act by which J^thelbald 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 Wihtrsed.' We are treading on treacherous ground.
See also the less suspicious Act of Jithelbald, A.D. 749, H. & S. iii. 386:
'Concede ut mouasteria et aecclesiae a publicis vectigalibus et ab omnibus operi-
bus oueribusque, auctore Deo, servientes absoluti uianeant, nisi sola quae corn-
muniter fruenda sunt, omnique populo, edicto regis, facienda iubeutur, id est,
instructionibus pontiurn, vel necessariis defeusionibus arciuni contra hostes, non
sunt reuueuda.'
272 England before the Conquest.
scotfree and gafolfree 1 . 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 2 . 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 3 .
Discus- No doubt it is a sound canon of criticism that, when in
words f of he a grant precise are followed by vague words, the former should
immunity. k e 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 tribittum
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 4 ; 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
1 A.D. 1066, Edward the Confessor for Westminster, K. 828 (iv. 191):
1 scotfre and gavel fre.'
2 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 ; ' nee non et trium annorum ad se
pertinentes pastiones, id est sex convivia, libenter concedendo largitus est':
K. 148 (i. 173), B. i. 335.
s A.D. 904, K. 1084 (v. 157).
4 A.D. 826, Egbert for Winchester, K. 1037 (v. 81): ' Volo etiam ut haec
terra libera semper sit...nullique serviat nisi soli episcopo Wentano.'
Sake and SoJce. 273
army-geld or a ship-geld, the men of S l . Edmund are to pay a
like geld to the abbot and the monks 1 . 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.
As is well known, it usually proceeds to except certain The tri-
burdens, to declare that the land is not to be free from them. s itas.
These burdens, three in number, are on a few occasions spoken
of as the trinoda necessitous. 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 necessitous 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 2 ,
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*, 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 4 ,
and we are hardly entitled to reject them all merely because
they do not conform to the general principle 5 . More to our
1 K. 1346 (vi. 205). Compare Fustel de Coulanges, L'Immunit6 M6rovin-
gieune, Eevue historique, xxiii. 21.
2 E.g. K. 1117 (v. 231): 'tribus semotis causis a quibus nullus nostrorum
poterit expers fore'; K. v. pp. 259, 283, 334.
3 To this class belong the foundation charter of Evesham mentioned above,
p. 235, and Offa's charter for S'. Albans, K. 161 (i. 195), which Haddan and
Stubbs, iii. 469, are unwilling to decisively reject. Cenwulf's charter for Abingdou,
K. 214 (i. 269), H. & S. iii. 556, sets a limit to the amount of military service
that is to be demanded. ^Ethelstan's charter for Creditou, recently printed by
Napier and Stevenson, Crawford Charters, p. 5, frees land from the trinoda
neeestitat.
4 E.g. K. i. p. 274 ; ii. pp. 14, 15, 24, 26, 83 ; v. pp. 53, 62, 81.
5 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.'
M. 18
274 England before the Conquest.
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 dngild. 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
dngild, singulare pretium, pretium pro pretio. In connexion
with these charters we must read others which exempt the
land from ' penal causes,' or wite-rceden 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-rica. Now dngild (singulare pretium} is
a technical term in common use 1 . When a crime has been
committed theft is the typical crime which the legislators
have ever before their eyes the dngild is the money com-
pensation 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 dngild, 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 2 .' 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 ini^ht
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
1 The passages in the dooms which mention it are collected in Schmid,
Glossar, s. v. dngild. They are discussed by Maurer, Krit. Ueberschau, ii. 32.
2 The clauses of immunity which mention the dngild will be collected iu a
note at the end of this section.
Sake and Soke. 275
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 ?
This question is difficult. The ancient charters, however The right
nearly they may go to telling us that the donee will do justice the right to
within his territory, never go quite that length. There is, a co
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 tun (yicum
regalem) 1 .' 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 dngild
to the plaintiff and, this done, will have justice over the
offender 2 . Another ancient book suggests that the lord of an
immunity, when he had to pay the dngild 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 3 . 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
1 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.
2 These clauses will be discussed in a note at the end of this section.
3 A.D. 841, K. 250 (ii. 14): 'Liberabo ab omnibus saecularibus servitutibus...
regis et principis vel iuniorum eorum, nisi in confinio reddaut 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 comi-
tatu, vel hallimoto soccam habentium, vel domiuorum curiis, vel divisis parium.'
See above, p. 97.
162
276 England before the Conquest.
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 1 . 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 2 .
The Taun- 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 3 .'
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
1 A.D. 828, K. 223 (i. 287): 'cum furis comprehensions intus et foris';
A.D. 842, K. 253 (ii. 16) 'ut... furis comprehensions.. . 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.
Yol. i. p. xlvi.
2 Hist. Eng. Law, i. 565.
3 K. 1084 (v. 157); B. ii. 272: 'Christo concessi ut episcopi homines tarn
nobiles quam ignobilcs in praefato rure degentes hoc idem ius in omni haberent
dignitate quo regis homines perfruuntur regalibus fiscis commorantes, et omuia
saecularium rerum iudicia ad usus praesulum exerceantur eodem modo quo
regalium negotiorum discutiuutur iudicia.' Similar words occur in a con-
firmation by Edgar, K. 598 (iii. 136), which Kemble rejects. This contains an
English paraphrase of the Latin text.
Sake and Sake. 277
crown, already stand outside the national system of finance,
justice and police 1 .
But so careful must we be in drawin inferences from The i
singular instances, so wary of forgeries, that in the end we can w i' te>
not dispense with arguments which rest rather upon pro-
babilities 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 2 . 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 ?
We must once more remember that even in the days of full Justice and
grown feudalism the right to hold a court was after all rather tiou.
a fiscal than a jurisdictional right. We call it jurisdictional,
1 Compare K. 821 (iv. 171) : ' swa freols on eallan tkingan call swa times
cinges agen innland.'
2 Hist. Eng. Law, i. 570.
278 England before the Conquest.
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 1 . 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.'
TheFrank- This, however, can not be treated as a merely English
nity. ' question. Parallel to the English freols-bdc 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 index 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
1 Hist. Eng. Law, i. 580.
Sake and Soke. 279
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 1 .
One other question should be raised, even if we can find for Seignorial
T . .,..,.. , , and eccle-
it no certain answer. Is not seignorial jurisdiction very closely siastical
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
1 Few questions in Prankish 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 ; Loning, Geschichte
des Deutschen Kirchenrechts, ii. 731; Brunner, D. R. G. ii. 298; Schroder,
D. R. G. 174 ; Beauchet, Histoire de 1'organisation judiciaire en France, 74 ;
Beaudoin, Etude sur les origines du regime feodal (Annales de 1'euseignement
superieur de Grenoble, vol. i. p. 43); Fustel de Coulanges, L'Immunite Merovin-
gienne (Eevue Historique, xxii. 249, xxiii. 1). 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
indices 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.
280 England before the Conquest.
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 1 .
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 2 , 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 3 .' 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
freols-boc is the liberation of a tract of ground from all secular
1 Madox, Hist. Exch. i. 109 ; Bigelow, Placita Anglo-Normannica, 114.
2 Hist. Eng. Law, i. 224-30.
3 Nissl, Der Gerichtsstand des Clerus im Frankischen Reich, 247.
Sake and Soke. 281
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 1 . As
such, should they not be subject to the jurisdiction of the
church ?
At this point we may profitably remember that the iuris- Criminal
. . , . .....,.., justice of
diction which in later days appears as the criminal jurisdiction theChureh.
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 2 ; and then from Domesday Book
we learn that in the borough of Lewes the upshot of this
partition is that the king will get 85. 4<d. from the man while
the adulteress pays a like sum to the archbishop of Canterbury 3 .
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 4 . 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 5 . The churches have made money out
1 K. 214 (i. 269); 236 (i. 312).
2 Edw. & Guth. 4; Leg. Hear. 11, 5. 3 D. B. i. 26.
4 Chron. de Bello, 26-7: 'Et si forisfacturae Christianitatis quolibet modo
infra leugam contigerint, coram abbate denniendae referantur. Habeatque
ecclesia S. Martini emendationem forisfacturae; poenitentiam vero reatus sui
rei ab episcopo percipiant.'
5 Battle Custumals (Camden Soc.), 126 : ' Septem hundreda non habent
fossas nisi apud Wy, et ideo habemus ij. denarios: Arobiepiscopus tamen et
Prior de novo trahunt homines suos ad fossas: Abbas de S. Augustino 11011
habet.'
282
England before the Conquest.
Antiquity
of sei-
gnorial
courts.
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 arch-
bishop 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 1 .
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 juris-
diction, this jurisdiction is of an exalted kind, for no causes are
excepted out of it, unless it be by the words about the dngild,
and even those words drop out from the charters in course of
time. Those words about the dngild 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
1 foreigner ' in a court outside the precinct, the immunist can
obtain ' cognizance ' of the action by appearing in that court
and paying the dngild. When the words about the dngild
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 2 . And then Cnut himself and the Confessor, the
latter with reckless liberality expressly grant to the churches
1 c. 3, X. 5, 37 : ' Accepimus...quod archidiaconi Conventrensis episcopatus...
in examinations ignis et aquae triginta denarios a viro et muliere quaerere
praesumunt.'
2 Cnut n. 12-15.
Sake and Sake. 283
just those very reserved pleas of the crown. The result is that
the well endowed immunist of S*. 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 1 . 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,
rnoyenne et basse justice.'
Our next question must be whether in the days before the Justice,
... ., vassalage
Conquest a franchise or immunity was the only root of private and tenure,
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.
1 Hist. Eng. Law, i. 564.
284 England before the Conquest.
^ e possibility of debate about this matter is afforded by
iiis man is 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 1 . 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 2 . It makes
the lord responsible for the appearance of his men in court
to answer accusations 3 , 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 4 . ' 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
1 Beaudoin, op. cit. p. 94 ff. 2 JEthelstan, n. 2.
3 Konrad Maurer, Krit. Ueberschau, ii. 30 fit.
4 .Ethelstan, ir. 3. Observe how in the Latin version 'se hlaford the rihtos
wyrne ' becomes ' dorniiius qui rectum difforciabit.'
Sake and SoJce. 285
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 1 .
At any rate, in numberless cases the law begins to interpose Duty of the
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 2 . 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 3 .
For a while the state approves all this. The dangerous The state
person is, not the lord, whose wide lands are some security for thTkmito.
his good behaviour, but the lordless man of whom no right can ' do nght '
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
1 K. Maurer, Krit. Ueberschau, ii. 32, 40, 41. Lie, 22, is of great importance
on account of its antiquity.
2 D. B. ii. 18 b : ' inde vocat dominum suum ad tutorem. ' See above, p. 71.
Leg. Henr. 57, 8 ; 82, 4, 5, 6.
286 England before the Conquest.
gulf. We have seen above that this gulf had not been bridged
even in the Confessor's, even in the Conqueror's day 1 . Nor to
our thinking would it have been bridged but for the creation of
'immunities' upon a grand scale. The first origin of the
immunity we have sought in the efforts of the clergy to obtain
lands which should be utterly exempt from 'all earthly burdens,'
' all worldly business.' But this effort unites with the stream
of tendency that we have now been watching. The state
will be grateful to the church if it will ' hold all the men of
God to right ' and do judgment between them and upon them.
The/w/- There is also a long series of dooms going back as far as
nca as iin-
muuist. ^Ethelstan's reign which give certain fines and forfeitures to
one who is described as the land-hldford or the land-rica.
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-.' 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, riot 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 ho
[the lord] is worthy of his wite 3 ': that is to say, the lord
1 See above, p. 89.
2 ^thelstan, vi. (Tudicia Civitatis Lundoniae), 1.
1 ^Ethelred, i. 1, S 7.
Sake and Soke. 287
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-rica shares the proceeds of a
fine with the hundred or wapentake 1 . 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-rica, half to the wapentake 2 .' This land-rica
is the lord of the wapentake. In another instance the gage
must be given half to the land-rica and half to the king's
port-reeve 3 . 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 4 . 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
Heading!: on, 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 5 .
1 Edgar, i. 2, 3; in. 7 ; iv. 2, 8; .Ethelred, i. 1; in. 3, 4, 7.
2 ^Ethelred, in. 3, 4. 3 ^Ethelred, in. 7.
4 Edgar, iv. 2, 11 ; ^Ethelred, i. 3.
6 D. B. i. 154. See above, p. y2.
288 England before the Conquest.
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-rica, 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 1 . Our main point must be
that the land-lord or land-rica of these laws is an immunist, or
is the king, who, where there is no immunity, occupies the
position of an immunist.
The irnmn- We see too that the immunist's rights extend over free men
ri-Ms over an( ^ over ^ ree landowners. If a man is guilty of heathenry he
freemeu. mus t } 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-rica 2 . 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-rica 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-rica
must pay the penny and take an ox from the defaulter, and if
the land-rica neglects to do this, then Christ and the king shall
receive the full bdt of twelve ores 3 .' Such is the manner in
1 See above, p. 275.
2 Northumbrian Priests' Law, Schmid, App. II. 48-9.
3 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, n. 3 ; ^Ethelred, vnu
8; Cnut, i. 8.
Sake and Soke. 289
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.
Another consequence of the argument in which we have Delegation
been engaged is that, at least a century before the Conquest, the clary
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 necessitous, 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 wife \
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 2 .
Will our attempt to explain the land-books create too many Number of
holders of sake and soke ? We do not think so, for we do not m
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 3 the number of the ecclesiastical
1 K. 498 (ii. 386). 2 See above, p. 100.
3 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.
si. 19
290 England before the Conquest.
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 1 . However, here as elsewhere we must admit
that every attempted explanation discloses new problems.
NOTE.
The Angild Clause.
As we have said above, (p. 274), there are certain charters in which the
clause of immunity makes mention of the dngild (pretium pro pretio,
singulare pretium). We will here collect the obscure texts in which this
diffieult 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
S l . 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" (^Ethelb. 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 b6t (very ample bat) 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 bot 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.
1 D. B. i. 280 b ; i. 337.
The Angild Clause. 291
(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 : ' exoeptis 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 quadran-
tem 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 construc-
tione sui [ = seu] arcis munitione vel destructione in eodem geiite, 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 ilia autem tribulatione que witereden nominatur sit libera, nisi
tamen singuli pretium solvent ut talia accipiant. Fures quoque quos
appellant weregeldSeofas 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 expe-
ditione contra hostes, et singulare pretium contra alium, et ad poenam nihil
foras resolvat.
(xi) A.D. 883. ^Ethelred of Mercia for Berkeley. K. 313 (ii. 110);
B. ii. 172 : 'and J>set ic }>aet mynster fram seghwelcum gafolum gefreoge )>e
to >iode hlafarde belimpeft, littles oSSe micles, cuttes ge uncuSes, butan
angilde wit? o)>rum and faesten gewerce and fyrd socne and brycg ge-
weorce ghwelces >inges to freon ge wift cyning, ge wr5 ealdorman, ge
wiS gerefan teghwelces J>eodomes, lytles and micles, butan fyrd socne and
fsesteu geworce and brycg geworce and angylde wiS otSrum and noht ut to
wite.'
(xii) A.D. 888. ^Ethelred of Mercia for a thegn. K. 1068 (v. 133);
B. ii. 194 : ' liberam hanc terrain describimus ab omnibus causis nisi
singulare pretium contra aliud ponat et modum ecclesiae.' Is the modus
[or modius] of the church the church-scot 1
192
292 England before the Conquest.
In a few other cases the immunity mentions penal causes, ' witerseden,'
and no express exception is made of the dngild. Thus :
(xiii) A.D. 842. JEthelwulf for a thegn. K. 253 (ii. 16); B. ii. 13: 'ut
regalium tributum et principal! dominacione et vi coacta operacione et
poenalium condicionum furis comprehensione...secura...permaneat.'
(xiv) [Questionable]. A.D. 844. ^Ethelwulf 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 servi-
tutis, fiscis regalibus, tributis maioribus et minoribus, quod nos dicimus
witereden.'
(xv) A.D. 877. Bp. Tunbert. K. 1063 (v. 121); B. ii. 163: 'a taxation-
ibus 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 ilium castiget. Sin autem ut recipiat aliatn iusticiam
huius vicissitudinis conditionem praefatum delictmn cum simple 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 ilia autem tribulatione que witereden nominatur sit libera nisi tamen
singuli [com singulare 1] pretium solvent 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 but 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 bot, 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
ivstitutory bot, 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 bot can not be exacted from the immunist's men, e.g. such a b6t as
we saw the Abbot of Pershore exacting from the Westminster men ; but
this is a minor question.
Book-land and Loan-land, 293
4. Book-land and Loan-land.
We can not say that from the first the gift of book-land Tlie book
establishes between the donee and the royal donor any such gift.
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 conse-
quence 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 1 ,' 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 whom-
soever 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-. 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 3 . Even the general
1 K. 729 (iv. 3).
2 It is noticeable that the verb syllan usually means ' to give.' Words such
as vendere are avoided.
3 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. 907, K. 534 (iii. 11): 'meo fideli vassallo.' A.D. 821,
294 England before the Conquest.
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 Cuthrsed 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 1 .'
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 2 .'
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 However, as already said, the gift supposes that the personal
vice. Ser 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 3 . The Normans saw their homage in the
English commendation 4 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 5 . 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
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.
1 K. 179 (i. 216): 'eo videlicet iure si ipse nobis et optimatibus nostris fidelis
manserit minister et inconvulsus amicus.'
2 K. 408 (ii. 263): ' eatenus ut vita comite tarn fidus mente quam subditus
operibus mihi placabile obsequium praebeat, et meum post obitum cuicunque
meorum amicorum voluero eadem fidelitate immobilis obediensque fiat. 1
3 The terms of the oath are given in Schmid, App. X.
4 See above, p. 69.
8 See above, p. 69.
Book-land and Loan-land. 295
service that the lands of the churches shall render. Abingdon
need send to the host but twelve vassals and twelve shields 1 .
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 2 . 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 3 .
Such rules when regarded from one point of view may well Military
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 centri-
fugal 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 4 . 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.
The same vagueness enshrouds the infancy of the escheat ^ f s jj^*
laud.
1 K. 214 (i. 269) ; H. & S. iii. 556.
2 D. B. i. 172; see above, p. 159. 3 Cnut, n. 13, 77.
4 See above, p. 156.
296 England before the Conquest.
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 1 .' 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 2 .
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 3 . The land that the king has booked
1 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.
2 K. 1020 (v. 60); B. i. 409; H. & S. iii. 528.
3 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
Book-land and Loan-land. 297
to his thegn is an ' honour ' and the giver will expect to bo
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 1 . 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 2 .
And even when, as is generally the case, the book made in Alienation
J . of book-
favour of a lay-man says that the donee is to have the power land.
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 nuncu-
exchange it, then they may return it ' to that royal family by whom it was
given to them.'
1 Brunner, Zur Rechtsgeschichte d. rom. u. germ. Urkunde, p. 190 ; Hist.
Eng. Law, ii. 12.
- See Brunner, Landschenkungen, Forschungen, p. 1. lu this paper
Dr Brunner appealed to our English law, in order that he might settle the
famous controversy between Waitz and Both 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' (Bi'sitzn'i'ht) can be determined by the donor's words, by a
lex donationis imposed by the donor on the land.
298 England before the Conquest.
pative wills 1 . 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 2 . 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 Then the law about heriots complicates the matter. The
testament, 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 8 . A time
comes when the king provides his thegn, no longer with arms,
but with land ; still the heriot is rendered 4 . 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 5 .
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
1 Brunner, Geschichte der Urkunde, p. 200.
2 Heming's Cartulary, i. 259. 'Post mortem autem eius, filius eius...
testamenturn patris sui irritum faciens....' Ibid. p. 263 : 'Brihtwinus...eandem
terrain 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.
3 Brunner, Forschungen, p. 22; Hist. Eng. Law, i. 292.
4 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.'
5 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.
]). .",19 : ' And I pray mv dear lord for the love of God that my testament may
stand.' See also pp. 528, 539, 543, 552, 576.
Book-land and Loan-land. 299
power ; he may be hoping that the king's aid will be sufficient
to enable him to bequeath the unbooked land that he holds 1 .
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 2 .
This having been said, we shall not be surprised to find The gift
that in ancient times the difference between a gift of land and i oa n.
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 3 . 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
1 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.
2 K. 414 (ii. 273): 'Ego Wulfricus annuente et sentiente et praesente
domino meo rege...concessi... terrain 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... concede. ..has
terras de propria possessione mea quas idem... rex dedit in perpetuam heredi-
tatem.' K. 1226 (vi. 25): 'Ego ^Ifwordus minister Eegis Eadgari concedo ..
annuente domino meo rege...villam unam de patrimonio meo.'
3 Except in the case?, comparatively rare before the statute Quia Emptores,
in which the feoffee is to hold of the feoffor's lord.
300 England before the Conquest.
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 dis-
tinguished) is one of the original germs of the rule that all
laud 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.
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
Book-land and Loan-land. 301
of humble tenancies, wherein the peasants obtain land from
the churches and other owners on more or less arduous con-
ditions, 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 1 . The king
can not prevent the beneficia, the feuda, from becoming
hereditary.
The analogous English institution was the Iwn or, as we The Eng-
now say, loan. If in translating a German book we render loan.
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
^Ethelbald forbids any one to beg for a benefit or benefice out
of the lands that have been given to the church of Winchester 2 .
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 3 .
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 estV But it is clear that the
English conception of a land-loan was very lax ; it would blend
1 Fustel de Coulanges, Les origines du systeme feodal ; Brunner, D. B. G. i.
209-12.
2 K. 1058 (v. 115) ; B. ii. 89 : 'et nullus iam licentiam ulterius habeat Christ!
neque sancti Petri...neque ausus sit ulterius illam terrain praedictam rogandi in
beneficium.'
3 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 thegu. The consideration for this lease is a promise that for the future
he will not make gifts out of the goods of the church.
4 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; ' terrain... humili prece deprecatus fui.'
302 England "before the Conquest.
with the conception of a gift. To describe transactions of one
and the same kind, if such verbs as commodare and Icenan and
l&tan were used 1 , such words as conferre, concedere, tribuere,
largiri and donare were also used 2 . 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 Unfortunately our materials only permit us to study one
church i . i i i i ii
lands to the branch or 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 3 ; before the century is out
the abbot of Medeshamstead has granted ten manses to the
' princeps ' Cuthbert for lives 4 . In 855 the bishop of Worcester
gives eleven manses to the ealdorman of the Mercians and his
wife for their lives 5 ; in 904 a successor of his makes a similar
gift 6 . 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
1 For commodare see K. v. pp. 166, 169, 171; for Idnan, ibid. 162; for Idtan,
ibid. 164.
2 See Bp Oswald's leases.
3 K. 91 (i. 109). 4 K. 165 (i. 201).
8 K. 279 (ii. 61). 6 K. 339 (ii. 149).
Book-land and Loan-land. 303
life 1 . 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 2 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 3 .
Occasionally the lease is made in consideration of a sum of The cpnsi-
money paid down ; occasionally the recipient of the land comes f or t he
under an express obligation to pay rent. An early example loaUt
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 4 . 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 5 .
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 6 . 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.
But from our present point of view by far the most s. Os-
wald's
interesting form that the loan takes is the loan to the thegn or i oa ns.
the cniht. Happily it falls out that we have an excellent
opportunity of studying this institution. We recall the fact
1 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).
2 K. 262 (ii. 33) is a lease for five lives by the church of Worcester ; but the
lessee is a king.
3 Nov. 7, 3. See Brunner, Zur Eechtsgeschichte der rom. 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.
4 K. 165 (i. 201). The 'limitation' is not very plain ; but we seem to have
here a lease for two lives.
5 K. 182 (i. 220).
8 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.
304 England before the Conquest.
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 there-
abouts 1 . 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
fidcle obsequiurn ' 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 2 . 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) 5 . 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 nofc for this, we
might well think that these loans were made solely in con-
sideration 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,
waid'slet- But happily for us S l . Oswald was a careful man of business
terto
Edgar.
1 These are preserved in Heming's Cartulary; see K. 494-673.
2 In K. 4fl8 (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.
3 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 ret and regi may be
suspected. What we want is what we get in some other ca c es, 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 aecclesiac necessitatibus et
utilitatibus.'
Book-land and Loan-land. 305
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 1 .
It takes the form of a letter written to King Edgar. We will
give a brief and bald abstract of it 2 : '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 3 . There-
fore 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 4 , 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
1 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.
2 In places its language becomes turbid and well-nigh untranslatable.
3 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.
4 K. vi. 125: 'hoc est ut omnis equitandi lex ab eis impleatur quae ad
equites pertinet.'
M. 20
306 England before the Conquest.
possess the said land they will be humbly subject to the
commands of the bishop. What is more, they shall hold them-
selves 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 1 ; they shall erect a hedge for the
bishop's hunt and shall lend their own hunting spears when-
ever 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 2 , 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 3 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,
1 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 h're (irO/>).'
2 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. 2G8) 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.
3 Ibid. : ' praevaricationis delictum secundum quod praesulis ius est
emendet."
Book-land and Loan-land. 307
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.'
Now we may well say that here is feudal tenure. In the Feudalism
first place, we notice a few verbal points. The recipient of the wa idslaw.
Icen 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 eg lies. 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
S*. Martin's day, it must be paid twelve-fold along with a fine 1 .
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 anachro-
nism ; but still he is bound to ride at the bishop's command.
Will he ride only on peaceful errands ? We doubt it. He is
1 D. B. 174. Compare the entry on f. 175 b relating to the church-scot of
Pershore.
202
308 England before the Conquest.
bound to do all the service that is due to the king, all the
forinsec service 1 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 S*. 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 3 . 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 3 . 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 These men may be bound to fight at the bishop's call, but
imgmen. fig^^g j s no 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
1 Hist. Eng. Law, i. 217. See also D. B. i. 165 b, Hinetune.
2 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.
3 Heming, i. 77: 'Et [episcopus] deracionavit socam et sacara de Hamtona
ad suum hundred de Oswaldes lawe, quod ibi debent placitare et geldum et
expeditionem . . . persolvere.'
Book-land and Loan-land. 309
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 1 . 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 sub-
jected his tenants to the lex equitandi.
Yet another of those feudal phenomena that come before us Heritable
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 2 . 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 3 . Now such a lease may cover the better
1 Maitland, Northumbrian Tenures, Eng. Hist. Rev. v. 625.
2 Hist. Eng. Law, i. 288.
3 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, Beitrkge zur Geschichte des franzosischen
Wirthschaftslebens, pp. 59, 60.
310
England before the Conquest.
Wardship
and mar-
riage.
Seignorial
jurisdic-
tion.
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 1 . 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 2 .
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 3 . 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 laud to
one of his knights 4 .
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
1 Heming, i. 259: 'Ac primo videndum quae terrae trium heredum tem-
poribus 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.
2 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.'
3 K. 637 (iii. 194) : ' si in viduitate manere decreverit, vel magis nubere
voluerit, ei tamen viro qui episcopali dignitati supradictae aecclesiae sit
subiectus.'
4 D. B. i. 173: ' Hanc terrain 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.'
Book-land and Loan-land. 311
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, central-
ized 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) 1 , 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 ? Doubt-
less 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 2 . 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.
Now how far we should be safe in drawing from Oswald's Oswalds-
loans and Oswaldslaw any general inferences about the whole of England at
England is a difficult question. It is clear that the bishop was arge '
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 Win-
chester. Also we must remember that he had lived in a Prankish
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
1 Hist. Eng. Law, i. 214.
2 See above, p. 267.
312 England before the Conquest.
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 1 .
Inferences However, we should hesitate long before we said that
vvaid's S Oswald's land-loans were merely foreign innovations. His pre-
loaus. decessors 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 docu-
ment 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 im-
posed. 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 These men were not peasants. The land that Oswald gave
OswaT<r8 f tnem they were not going to cultivate merely by their own
tenants, labour and the labour of their sons and their slaves, though we
1 D. B. i. 172 b: 'Hae praedictae ccc. hidae fuerunt de ipso doininio
aecclesiae, et si quid de ipsis cuicunque homini quolibet modo attributum vel
praestitum fuisset ad servieudum inde episcopo, ille qui cam terrain praestitatn
sibi tenebat nullam omnino consuetudinem sibimet inde retinere poterat nisi
per episcopum, neque terrain retinere nisi usque ad impletum tempos quod ipsi
inter se constituerant, et nusquam cum ea terra se vertere poterat Kene-
wardus tenuit et deserviebat sicut episcopus volebat Bicardus tenuit ad
servitium quod episcopus voluit Godricus tenuit serviens inde episcopo ut
poterat deprecari Godricus tenuit ad voluntatem episcopi.'
Book-land and Loan-land. 313
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 1 . 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 con-
structed. 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 2 .
We must now return for a moment to the relation that Loan-land
exists between the loan and the book. Lcenland is contrasted land,
with bdcland ; but historians have had the greatest difficulty in
discovering the principle that lies beneath this distinction 3 .
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 Icen. We have books which
in unambiguous terms tell us that they bear witness to loans.
Nor can we say that the holder of book-laud 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
1 D. B. 173 b.
2 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 doini forisque
ministrarent, equos suos tarn abbati quam fratribus suis quocumque necesse
esset praestarent, monasterium pro posse suo defensarent. '
3 Kemble, Saxons, i. 310 ff. ; K. Maurer, Krit. Ueb. i. 104; Essays in Anglo-
Saxon Law, No. ii. (Lodge) ; Brunuer, Geschichte d. rdrn. u. germ. Urkunde,
182.
314 England before the Conquest.
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
Idenland \ A similar deed of 985 contains a similar statement ;
five hides which Eadric held as Idenland are now being booked
to him, but booked only for three lives 2 . 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 Icenland 3 . 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
Icenland. It was book-land because it had been booked to them,
and yet very certainly it had only been loaned to them 4 .
Book-land Let us then turn to the laws and read what they say about
dooms. book-land. Two rules stand out clearly. ^Ethelred the Un-
ready declares that every wite incurred by a holder of book-land
is to be paid to the king 5 . 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 6 . 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 Icenland commits a grave crime, his land reverts,
or escheats or is forfeited to the man who made the ken 7 . 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
1 K. 617 (iii. 164). 2 K. 651 (iii. 216).
K. 679 (iii. 258).
4 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.
8 ^thelr. i. 1, 14. 6 Cnut, n. 13, 77.
7 K. 328 (ii. 133) : A certain Helmstan is guilty of theft ' and mou gerehte
"S&t yrfe cinge forSon he wes cinges mon and Ordlaf feng to his londe forSan
hit waes his lasn Saet he on sset.'
Book-land and Loan-land. ' 315
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.
Any solution of these difficulties must be of a somewhat Relation of
speculative kind. We fashion for ourselves a history of the to book-
book and of the land-loan which runs as follows : The written an '
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.
Nothing could be more utterly unproved than the opinion Royal and
that in Anglo-Saxon times written instruments were commonly books,
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 1 ; 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
1 K. 330 (ii. 136).
316 England be/ore the Conquest.
transaction is stated, and with hardly an exception the king
executes the document 1 . Even the holder of book-land who
wished to alienate it, for example, the thegn who wished to
pass on his book-laud 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 2 . 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 wite 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 lain 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
1 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 Jiscwig 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.
8 Brunner, Geschichte d. roin. u. germ. Urkuude, p. 175.
Boole-land and Loan-land. 317
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 1 .'
But there is a deeper cause of perplexity. Once more we The gift
must repeat that the gift shades off into the loan, the loan into loan
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 ^Ethelred 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 Ave
know, that the formula of dependent tenure (' A holds land of
B ') was current in the English speech of the Confessor's day
1 Hist. Eng. Law, i. 212.
318 England before the Conquest.
and that some of the king's thegns held their land 'of the
king 1 . We may guess that those old terms 'book-land' and
'loan-land' would soon have disappeared even from an un-
conquered England, for it was becoming plain that the book
bears witness to a loan. A new word was wanted; that word
was feudum.
5. The Growth of Seignorial Power.
Subjection We now return to our original theme, the subjection to
of freemen
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 In the first place, it has a right to the feorm, the pasius or
alums victus that the king has hitherto exacted. We should be wrong
land. m thinking that in the ninth century (whatever may have
been the case in earlier times) this exaction was a small matter.
In 883 ^Ethelred 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 unre-
deemed. 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 2 . The king had been deriving a
revenue from this land ' in clear ale, in beer, in honey, in cattle,
1 K. 843 (iv. 201): ' swa full and swa for5 swa Durstan min huskarll hit
furruest of me heold.' K. 846 (iv. 205) : ' swa full and swa for/5 swa Sweyn mi
may hit formest of me held.' K. 826 (iv. 190) : 'swa J31fwin sy nunne it heold
of flan minstre.' K. 827 (iv. 190) : ' swa Sihtric eorll of "San minstre )>eowlic 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 terrain de
rege,' nor only so, ' tenuit honorem de rege ' ; but this document is un-
acceptable. At best it may be a late Latin translation of an English original.
K. 313 (ii. 110) ; T. 129 ; B. ii. 172.
The Growth of Seignorial Power. 319
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 1 . 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 sup-
porting 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 2 . 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.
But a village charged with a ' provender-rent ' may seem far Provender
enough removed from the typical manor of the twelfth and ^ manor-
thirteenth centuries. In the one we see the villagers culti-
vating 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 impass-
able. 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 3 .
But we can conceive how the change begins. The monks are
not going to travel, as a king may have travelled, from village
1 In many cases the one night's farm is reckoned at 100 or thereabouts;
Bound, Feudal England, 112.
2 K. 477 (ii. 354) ; T. 509.
8 Vinogradoff, Villainage, 301.
320 England "before the Conquest.
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 punc-
tually 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 1 .
The church We have argued above that in the first instance it was not
peasants ^ v means f tne P^ty gifts of private persons that the churches
amassed their wide territories. The starting point is the aliena-
tion 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 diffi-
culty 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*, 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 in-
ferences 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
1 Even T. B. 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.
2 Hist. Eng. Law, ii. 315.
Tlie Growth of Seignorial Power. 321
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 1 .
Now we are far from saying that the manorial system of rural Growth of
economy is thus invented. From the time of the Teutonic con- iai system,
quest of England onwards there may have been servile villages,
Roman villas with slaves and coloni cultivating the owner's de-
mesne, 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 2 )
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 3 . 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 4 .
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.
Besides the rights transferred to it by the king:, the church Church-
. , . 1,., scot and
would have other rights at its command which it could employ tithe,
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 5 . Certainly in laws of the teuth 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 docu-
1 Ine, 67. See Schmid's note.
2 See above, p. 15.
3 See Meitzen, Siedelung und Agrarwesen tier Gevmanen, ii. 97 ff.
4 Stubbs, Const. Hist. i. 223.
5 The subject is treated at length by Kemble, Saxons, ii. 490 and App. D,
and Schrnid, p. 545.
M. 21
322 England before the Conquest.
ments 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 S*. 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 1 . 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.
Juristic- Another potent instrument for the subjection of the free
rights of landowners would be the jurisdictional rights which passed
the lord. rom ^ Q ^{ n g ^ o 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 burden-
some duty, he will pay an annual sum in lieu thereof, and here
is a new rent. Then again all the affairs of the territory arc
1 D. B. i. 174. Compare Ine, 4 ; ^Ethelr. viu. 11 ; Cnut, i. 10.
The Groivth of Seignorial Power. 323
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 com-
munity 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 1 . 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-cop, 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 2 .
Yet another turn is given to the screw, if we may so speak, The lord
when the state and the church begin to hold the lord answer- man's
able for taxes which in the last resort should be paid by the ta
tenant 3 . 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
1 Hist. Eng. Law, ii. 95.
2 jEthelred, in. 3; Schmid, App. II. 67 and Schmid, Glossar. s. v. land-
cedp.
3 See above, pp. 55, 122. 125.
212
324 England before the Conquest.
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 1 . 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 To this depth of degradation the great mass of the English
ceorl? B peasants in the southern and western counties the villain,
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.
1 See above, p. 6. In a charter of .Ethelred, 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.
The Growth of Seignorial Power. 325
However, the conditions which would facilitate such a farther The slaves,
fall had long been prepared, for slavery had been losing some of
its harshest features. Of this process we have said something
elsewhere 1 . 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 2 . 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 3 .' 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 4 .
We might here speak of the numerous causes for which in a Growth of
lawful fashion a free man might be reduced into slavery, and f^nT 8
were we to do so, should have to notice the criminal law with below -
its extremely heavy tariff of wer and wife and bot. But of this
enough for the time has been said elsewhere 5 , 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
1 See above, p. 27. 2 Hist. Eng. Law, i. p. 416.
3 K. 1327 (iv. 190) : ' swa full and swa for5 swa Sihtric eorll of tSan ministre
it heold.'
4 Cnut, n. 20. ' Hist. Eug. Law, ii. p. 458.
326 England "before the Conquest.
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 manorialisrn. 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 free-
booters, 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 1 .
And so we may see in Cambridgeshire that a man will some-
times have half a hide in one village, a virgate in another,
two-thirds of a virgate in a third. He is ' thriving to
thegu-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 Cambridge-
shire townships-.
Theories "We have been endeavouring to show that the legal, social
nectthe " and economic structure revealed to us by Domesday Book can
manorwttfa ^ e accounted for, even though we believe that in the seventh
tiie Roman cen tury there was in England a large mass of free landowning
ceorls and that many villages were peopled at that time and at
1 Chron. Petrob. 166 : ' Sunt etiam in eadem scira 15 undersetes qui nullum
servicium faciunt nisi husbondis in quorum terra sedent.'
2 See above, p. 136.
The Growth of Seignorial Power. 327
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 Domes-
day Book.
In the first place reliance has been placed on the document
known as Rectitudines Singularum Personarum 1 . 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 hdm,
providing warships" 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 3 , and reap and mow and hew the deer-hedge and keep it
up, build and hedge the burh and make new roads for the ttin,
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
1 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.
2 We here adopt Schmid's conjecture : ' and scorp to frrSscipe [corr.
fyrdscipe].'
3 Ibid. : ' and hlaford feormian,' and supply a feorm (firma) for his lord.
328 England before the Conquest.
Thursday as every free man should. He ' defends ' or
' acquits ' his lord's inland when there is a summons for sea-
Avard 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 gebur. 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 1 in his lord's fold from Martinmas to Easter. On the land
where this custom prevails the gebur 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.
Discus- Now. according to our reading of this document, there stand
sion of the
Rectitu- below the thegn, but above the serfs (of whom but few words
are said 2 ) three classes of men there is the geneat, there is the
gebur 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 3 .' His services strikingly resemble those
which S 4 . Oswald exacted from his ministri, his equites, his
milites*. Almost every word that is said of the geneat is true
of those very substantial persons who took land-loans from the
1 The text says that he must lie at his lord's fold ; but probably it refers to
the socafaldae. See above, p. 76.
2 Of the serfs we hear (c. 8, 9) what they are to receive, but not what they
ought to do ; their services are unlimited.
3 Schmid, p. 596: Maurer, K. U. ii. 405.
4 See above, p. 305, also Maurer, K. U. ii. 406.
The Growth of Seignorial Power. 329
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 1 . On the other hand, in the gebtir of this
document we may see the burns, who is also the colibertus of
Domesday Book 2 , 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 3 ; but when
we place the Rectitudines by the side of the survey we can
hardly avoid the belief that the extremely dependent gebur of
the former is represented, not by the villanus, but by the burns
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 4 .
In 956 King Eadwig gave to Bath Abbey thirty manses at
1 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, & colonus with a
wergild of 1200 shillings ! See Schmid, p. 29.
2 See above, p. 56.
3 See e.g. cap. i., where it is pretty clear that he cannot translate scorp. So
in the Latin version of Edgar n. c. 1 he renders geneatland by terra
villanorum. But about such a matter as this the testimony of the Quadripar-
titus is of no value. See Liebermann, Gerefa, Anglia, ix. 258.
4 Mr Seebohrn, 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 gebiir both in this document
and in the account of Tidenham. So in Edgar n. 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 gebur and burus are obviously very loose words and it is likely
that many a man who answered to the description of the gebur given by the Rec-
titudines 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
rillani. See above, p. 36.
330 England "before the Conquest.
Tidenham in Gloucestershire 1 . 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 2 . 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 gebur. 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 gebur 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 gebur. 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 gebur, 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 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 ' aet Stoce be Hysse-
burnan' together with all the men who were thereon at the
time of Alfred's death and all the men who were 'aet Hisse-
burna' at the same period. Edward, we are told, acquired the
land 'aet Stoce' in exchange for land 'aet Ceolseldene' and 'aet
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
1 K. 452 (ii. 327). See also Two Chartularies of Bath Abbey (Somerset
Record Society), pp. 5, 18, 19.
2 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.
TJie Growth of Seignorial Power. 331
which the ceorls shall do 'to Hysseburnan.' Then follow the
boundaries. Then the eschatocol of the charter and the list of
witnesses is repeated 1 . 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 docu-
ments in the same cartulary bear on the same transaction. By
the first Edward gave to the church of Winchester 50 manentes
'set Hysseburnan' which he had obtained by an exchange for
land 'set MerchammeV By the second he gave to the church
of Winchester 50 manentes 'ad Hursbourne' and other 10 'ad
Stoke 3 .' The more carefully these three documents are ex-
amined, 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
1 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).
2 B. ii. 238. 3 B. ii. 239.
332 England before the Conquest.
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 That such an arrangement was common in the eleventh
from these ... .
cases. century we know ; a solitary instance of it comes to us profes-
sedly from the first year of the tenth, and certainly from a car-
tulary 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 1 ?
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 2 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 3 . 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 ham or a tun, for the meanest ceorl may have a
tun and will probably have a home of his own 4 .
The villa 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 5 .
view.
1 See above, p. 129. 2 Ine, 67.
3 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.
4 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.
8 Ashley, Translation of Fustel de Coulauges, Origin of Property, p. xvi.
Tlie Growth of Seignorial Power. 333
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 1 , but it is also a civitas, urbs, oppidum, vicus, a wic, a
tun, 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 2 . 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 appur-
tenant 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 3 . It became our word wick and it became part of a
very large number of place-names 4 . The Domesday surveyors
found herdwicks and berewicks in many parts of the country 5 .
1 K. 220 (i. 280) : 'ad regalem villam Lundoniae perveniens.'
2 Fustel de Coulanges, L'Alleu, ch. vi. There is much to be said on the
other side ; see Flach, Les origines de Pancienne France, ii. pp. 47-62. As to
the villa of the Lex Salica, see Blumenstok, Entstehung des deutschen
Immobiliareigenthuins, i. 219 ff.
3 The suggestion that villa appears in some of our place-names as the termi-
nation -well runs counter, so Mr Stevenson tells me, to rules of phonology,
4 See Bosworth's Dictionary; Kemble, Cod. Dipl. iii. p. xli. In the
translation of S'. Mark viii. 23, 26 both wic and tun are used as equivalents for
vicus : ' eduxit eum extra vicum...et si in vicum introieris' = 'and lasdde hine
butan }>a wic and "Sean Ju on tun ga. ' Even in France the word vicus
becomes part of numerous place-names: see Flach, op. cit. i. p. 53.
5 There is something curious about the use made of loick. 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-ioick. The berewicks and
334 England before the Conquest.
Moreover we can see that iri 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 1 .
Notices of If we carefully attend to the wording of the land-books, we
"he'char- 11 shall find the manorial economy far more visible in the later
than in the earlier of them. The Confessor gives to Westminster
'<5a cotlife Perscore and Dorhurste' with all their lands and
all their berewicks 2 . 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 3 . From 998 we have a gift of a ' heafod-botl,' a capital
mansion, we may say, and its appurtenances 4 . 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 5 .
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 6 . Sometimes in old books the
king will say that he is giving a vicus, a vicus of five or eight
or ten tributarii 7 . 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
herdwicks of D. B. (see above, p. 114) seem to be small clusters. On the otber
hand London is a u-ic; Hloth. and Bad. 16.
1 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. 2o9 (ii. 26): 'villam unam ab
orientale parte muri Doroverniae civitatis.'
2 K. 829 (iv. 191).
3 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 J?a feala
cotlif set se king.'
4 Crawford Charters, pp. 22, 125; K. 1293 (vi. 138).
5 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 & 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.
6 A good example is that abominable forgery K. 984 (v. 2), Wulf here's
charter for Peterborough.
7 For example, K. 117-8-20 (i. 144-7).
Tlie Growth of Seignorial Power. 335
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 1 . 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'''.
But, it will be said, at all events the king is giving persons, The mansa
men, as well as land ; he is giving manentes, casati, tributarii. manens.
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 3 .
Hence it is that reference is so often made to repute and
estimation. ' I give,' says Egbert, ' a certain portion of land to
1 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 uteusilibus bouis ad
mansionem in grafon tea [Graveney] aeternaliter concessum est.'
2 A.D. 880, K. 311 (ii. 107): ' Insuper etiam huic donation! in augmentum
sex homines, qui prius pertinebant ad villam regiam in Beonsinctune, cum
ornni 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.
3 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 ^Ethelwulf ordered
that one poor man should be fed and clothed ' per omiiern hereditariam terram
suam semper in x. rnaiientibus.'
336 England before the Conquest.
the amount, as I estimate, of five casati,' or (it may be) ' of
twenty manentes 1 ' 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 2 . Rating is a rough
process; five and ten are pleasant numbers.
The hide. But against the argument which would see in every con-
veyance 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 gebur
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
1 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.'
2 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.
The Growth of Seignorial Power. 337
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 Sear 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 1 . 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.
And whence, we must ask, comes that system of intermixed The strip-
' strip-holding ' that we find in our English fields ? Who laid a nd the
out those fields ? The obvious answer is that they were laid Vllla "
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 con-
tinuous 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
1 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.
M. 22
338 England before the Conquest.
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 1 .
The lords We are far from saying that wherever there is strip-holding,
strips. there liberty and equality have once reigned 2 . It is very possible
that where a barbarian chieftain obtained a ring-fenced allot-
ment 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.
1 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.
2 Meitzen, op. cit. i. 431-41.
The Growth of Seignorial Poiver. 339
That we have not been denying the existence of slavery will The ceori
be plain. Indeed we may strongly suspect that the men who s i" V e. e
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.
Lastly, the theory which would derive the English manor The comii-
froin the Roman villa must face the grave problem presented to Danelaw,
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 commenda-
tion, 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 settle-
ments. 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 manorial i zing 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 1 . The
west country is the country to which we shall naturally look for
1 See above, p. 139.
22 2
340 England before the Conquest.
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, Peter-
borough and Ramsey, Croyland and Thorney. But, even when
supplemented by legend and forgery, their titles to wide terri-
tories can seldom be compared for antiquity to the titles that
might have been pleaded by the churches of Kent and Wessex and
the Severn Valley. Richly endowed churches mean a subjected
peasantry. And thus we may say of the Danes that if in a
certain sense they freed the districts which they conquered, they
in the same sense enslaved the rest of England. Year by year
Wessex and Mercia had to strain every nerve in order to repel
the pagans, to fit out fleets, build burgs and keep armies always
in the field. The peasant must in the end bear the cost of this
exhausting struggle. Meanwhile in the north and the east the
process that makes manors has been interrupted ; it must be
begun once more. It was accomplished by men some of whom
had Scandinavian blood in their veins, but who were not
heathens, not barbarians: it was accomplished by Normans
steeped in Frankish feudalism.
6. The Village Community.
The village We have argued for an England in which there were many
nity"' 1 free villages. It remains for us to say a word of the doctrines
which would fill England with free landowning village com-
munities. 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 docu-
ments. We are among guesses and little has as yet been proved.
Thepopn- A popular theory teaches us that land belonged to com-
my ' munities before it belonged to individuals. This theory has the
The Village Community. 341
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.
It apparently attributes the ownership of land to coin- co-owner-
munities. 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 indivi-
duals, by a hundred individuals.
The distinction that modern law draws between the land- 'Communi-
owning corporation and the group of co-owners is as sharp as owners,
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
342 England before the Conquest.
one and partly the other, seems impossible 1 . 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 Also since we are apt to fall into the trick of talking about
and owner- > i . . . , .
ship. 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 rnay 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 some-
thing else ?
Ownership At the present day no two legal ideas seem more distinct
vernmental from each other than that of governmental power and that of
power. 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 revolu-
tion 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 restric-
tions 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 2 : still neither state nor sovereign
1 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 Genosaenschaft.
2 This is no extravagant hypothesis. See e.g. Stat. 7 Hen. VIII. c. 1 Thacte
advoidyng pullyng downe of townes.
The Village Community. 343
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 rail-
ways. 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 1 and
yet the cart is his and not the state's.
Similar powers may be exercised by persons or bodies that Ownership
J 11 . and the
are not sovereign, for example, by the governor 01 a province, powers of
by a county council or a municipal corporation. Suppose that nate^ver-
the owners of land situate within a certain borough are pro- nors -
hibited 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-farms 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.
But though this be so, we can not doubt that could we Evolution
trace back these ideas to their origin, we should come to a
1 See Army Act, 1881, 44 and 45 Vic. c. 58, sec. 115.
344 England before the Conquest.
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 1 ?
Communal Now if we are going to confuse sovereignty with ownership,
ownership . . -^i 7 i- i i
as a stage, impenum 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
1 Flach, Les origines de 1'ancienne France, ii. 45, referring to the classical
passages in Caesar and Tacitus, says : ' Ce serait un abus de mots de dire que la
tribu ou que le clan sont proprie'taires. La tribu (civitas) a la souverainete du
territoire, les clans de leurs subdivisions ont 1'usage des parts qui leur sont
assignees. La conception meme de la propriety est exclue par la nature des
terres : Stendue de friches toujours renaissantes et en surabondance toujours :
superest ager.' See also Dargun, Ursprung des Eigenthums, Zeitschrift fur
vergleichende Eechtswissenschaft, v. 5-5.
TJie Village Community. 345
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 1 . 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 centra-
lization 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 G
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.
But in truth we are learning that the attempt to construct A normal
a normal programme for all portions of mankind is idle and stages!^
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
1 Dargun, Ursprung des Eigentbnms, Zeitschrift fur vergleichende Rechts-
wissenschaft, v. 1 (1884). See also Hildebrand, Eecbt und Sitte, Jena, 18'JG.
346
England before the Conquest.
Was land
owned by
village
communi-
ties?
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.
It is an interesting question whether in the history of our
own people we ought to suppose any definite ' stage ' inter-
mediate 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 con-
tinuously 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 3 . 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
1 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.
The Village Community. 347
arable strips at regular or irregular intervals 1 . 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 owner-
ship 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 2 .
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 3 .
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 an-
tagonistic 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 arrange-
ment established by the nature of things in general and of
acre strips in particular 4 .
1 As to the famous words of Tacitus ' Agri pro numero cultorum ab
uniuersis in uices [aZ. inuicem] occupantur ' and the proposal to read uniuersis
rids, 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.
2 As to the state of things represented by the Lex Salica see Blumenstok,
Entstehung des deutschen Immobiliareigenthums, Innsbruck, 1894, pp. 196 ff.
3 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.'
4 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
anythiug that should be called communal ownership are singularly inconclusive.
348 England before the Conquest.
Meadows, Thus, so far back as we can see, the German village had
pasture ... . .
and wood, a solid core or 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 redis-
tributed 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 w r e must at once find an owner for this Almende,
we may be inclined to place the ownership in a village com-
munity, though not without remembering that if this com-
munity 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 1 .
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
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 Com-
munities, Law Quarterly Eeview, ix. 36.
1 Hist. Eng. Law, i. 610-12.
Tlie Village Community. 349
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.
In a favourable environment the German village community The bomi
may and will become a landowning corporation. But many neigh- U
dangers lie before it : internal as well as external dangers. bours -
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 1 . 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 2 . Nor
again may we ascribe to the German house-father much power
over his full-grown sons 3 .
Moreover, the village community was not a body that Feebleness
J J ofthevil-
could declare the law of the tribe or nation. It had no court, lage cam-
no jurisdiction. If moots were held in it, these would be m
1 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 ajfines was a much harder task.
2 Heusler, Institutionen, 229.
3 As to the ownership of land by ' families,' see Hist. Eug. Law, ii. 242.
350 England before the Conquest.
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 1 . 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 agri-
cultural 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 2 .
Absence of 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 3 . Above all, we must not picture
these village lauds as ' impressed with a trust ' in favour of
1 See above, p. 147. 2 Of this in the next essay.
a A valuable and interesting discussion of the proprietary system of the Lex
Salica will be found in Blumenstok, Entstehung des deutschen Immobiliar-
eigenthums, 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 Fu^tel de Coulanges.
The Village Community. 351
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.
Thus even in favourable circumstances there were many The Ger
difficulties to be overcome if the communalism, such as it was, o
of the village community was to be maintained and developed. ed soil -
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 1 . 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 2 . 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 3 .
Then the invasions and the long wars called for a rapid
development of kingship. Very quickly the Frankish kingship kiugly
became despotism. In England also the kings became powerful 1>l
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 4 . Then
came bishops and priests with the suggestion that he should
1 See Meitzen, op. cit. i. 526-35.
2 Meitzen, i. 517 and the Maps 66 a, 66 b in the Atlas.
8 Meitzen, ii. 97-122. See above, p. 237.
352 England before the Conquest.
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 yii- We must not, however, repeat what has been lengthily said
England, 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 1 . 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 com-
mended, or shall we say that here is res nullius ? The suppo-
sition 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 occupa-
tion. 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 2 . This brings to
1 See above, p. 129.
2 Throughout the historical time, so far as we know, the right of every com-
raoner 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, lllb; Wells v.
Watling, 2 W. Blackstone's Reports, 1233. He needed no help from his neigh-
bours.
The Village Community. 353
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 domi-
mum, which is often imperceptible.
Not always imperceptible. From time to time these Orwell The village
people in town meeting assembled may have taken some grave m
resolution as to the treatment of the waste. They may now
and then have decided to add to the amount of arable and
dimmish 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 pro-
prietary 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 1 , 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.
The fate of these lordless communities and of their waste What
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
1 See above, pp. 13, 124.
M. 23
354 England before the Conquest.
borough and from the borough to the village. Then the owner-
ship 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 land-
owning corporation 1 . Often in the east of England the manors
must have been so intermixed that village meetings, not how-
ever 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 com- One other question may be touched. It was the fashion
ies ' 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 2 ; but the true Markyenossenschaft
was utterly different from the Dorfgenossenschaft, and the lands
with which it dealt were just those lands that belonged to no
village 3 . In the country which saw the Germans becoming an
agricultural race, the lauds belonging to the villages were but
oases in a wild territory. In later days some large piece of this
1 I refer to the much discussed case of Aston and Cote. See Law Quarterly
Review, ix. 214.
2 Meitzen, op. cit. i. 573. 3 Ibid. i. 122-00.
The Village Community. 355
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 1 ) 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.
We read of a tract in Suffolk which is common pasture for intercom-
the whole hundred of Coleness 2 . 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 uncomfort-
able niche for them under the rubric common pur cause de
vicinage 5 . These are the traces of what in different sur-
roundings 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 4 .
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 5 . In some districts the vills must have
been separated from each other by wide woods, and in all like-
lihood 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
1 Therefore its assembly is a Hohding, and a Holzgraf presides there :
Meitzen, op. cit. i. 125.
2 D. B. ii. 339 b : 'In hundret de Coleness est quedam pastura communis
omnibus homiuibus de huudret.' At Ehuddlan (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.
3 Hist. Eng. Law, i. 608.
4 Ibid. i. 547.
5 Blomefield, Hist. Norfolk, iv. 691 gives an account of an extremely
fertile tract of pasture known as Tilney Srneeth upon which the cattle of
seven 'towns' intercommoned.
232
356 England before the Conquest.
royal ownership, and we imagine that a mark community had
from the first little chance of organizing itself in England 1 .
But we have already made too many guesses.
Last 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 funda-
mental 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.
1 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 Eeports, 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 ? However unwilling 1 we may be to WLat was
,, . , , ! . * the hide?
race 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 ques-
tion about the hide is 'pre-judicial' to all the great questions
of early English history.
If our choice lay between 30 and 40 acres, or again be- Import-
tween a long and a short hundred, then indeed we might question
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 concep-
tion 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
358
The Hide.
Hide and
mause in
Bede.
Hide and
manse in
the land-
books.
thought that we could rear the fabric of political and con-
stitutional 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.
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 1 .
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 Hi Id acquires the
land of one family and erects a religious house upon it 2 ; king
Oswy gives away twelve tracts of land, each of which consists
of ' the possessions of ten families ' 3 ; the kingdom of the South
Saxons contains the land of 7,000 families 4 . 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 5 .' ' The isle of Thanet is no small island : that is to
say, according to the customary English computation, it is
of 600 families 6 .' 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.
When his own book is rendered into English that term
will reappear. Usually it reappears in the form hid, but occa-
sionally we have hiwiso or kiwscipe. There seems no room for
1 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.
2 Hist. Eccl. lib. 4, c. 21 (23), ed. Plummer, i. 253.
3 Ibid. lib. 3, c. 24, ed. cit. i. 178.
4 Ibid. lib. 4, c. 13, ed. cit. i. 230.
s Ibid. lib. 4, c. 14 (16), ed. cit. i. 237.
6 Ibid. lib. 1, c. 25, ed. cit. i. 45.
The Hide. 359
doubt that hiwisc and the more abstract hiwscipe mean a
household, and very little room for doubt that hid springs
from a root that is common to it and them and has the same
primary meaning 1 . 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 1 20 shillings ; but if he attains only
to a half-hide then his wergild is 80 shillings 2 .' In the charters
also we may now and then find that the land to be conveyed
is a hiwisc 3 , or is the land of one familia 4 . 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 5 . 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 6 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 7 . So far as we can see, all these
terms are being used as though they were absolutely equiva-
lent. 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
1 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 teira unius familiae (manentis etc.)
2 Schrnid, App. VII. (Wergilds), 2, 7. By comparing this with Ine 32 we
get an even more explicit equation : ' Gif Wylisc mon haebbe hide londes ' ' Gif
Wilisc mon gej>eo Jjset he hsebbe hiwisc landes.'
3 K. 271 (ii. 52), a forgery: 'jet Cemele tien hyda, set Domeccesige J>riddehalf
hiwisce.' K. 1077 (v. 146): 'aet hilcan hiwisce feowerti penega.' K. iii. 431:
'Sffis anes hiwisces boc..."Sas oftres hiwisces.' K. 1050 (v. 98). See also Craw-
ford Charters, 127, for hiwscipe.
4 K. 1006 (v. 47) : ' de terra iuris mei aliquantulam portionem, iuxta mensurarn
scilicet decem familiar um.' See also K. 1007.
5 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 hid is in constant
use.
6 K. 131 (i. 159) ; K 140 (i. 169).
7 Thus, to give one early example, K. 1008 (v. 49) : ' duodecim tributaries
terrae quae appellantur Ferrinig.' So in K. 124 (i. 151) we have the neuter form
manentia.
360 The Hide.
inelegant 1 . 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 2 ; and it is by no means unknown that
Kentish tenements will be called manses and hides 3 .
The large Now if we ask whether the type to which reference is thus
the manor- made is a tenement comprising about six-score acres of arable
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 sup-
position 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 house-
holder 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
1 A good instance in Egbert's Dialogue, H. & S. iii. 404. For bow many
hides may the clergy swear? A priest may swear 'secundum numerum 120
tributariorum ' ; a deacon ' iuxta numerum 60 manentiurn ' ; a mouk '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.'
2 See Schmid, p. 611.
3 See, for instance, Werhard's testament (A.D. 832), K. 230 (i. 297) : 'Otteford
100 hidas, Graueuea 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.
The Hide. 361
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 house-
holder, 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 1 .
Now for a long time past there has been among historians Ourcoursr
1 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, hiwixc = liide. It is the passage quoted above on p. 359. The Welsh-
man 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.
362
The Hide.
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 1 . 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 argu-
ments may be advanced. In order that they may be under-
stood, and perchance refuted, we must pursue a long and
devious course and must raise by the way many questions,
touching which we have no right to an opinion: questions
about agriculture, questions about land measurement, perhaps
even physiological questions. Also it is our misfortune that,
as we stumble through the night, we must needs stumble
against some of our fellow adventurers.
1. Measures and Fields.
Perma-
nence 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 agri-
cultural progress there is a rapid acceleration as it flows towards
1 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?
Measures and Fields. 363
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 Caesar.
Let us look, for example, at the changes that take place Rapidity of
in some Essex villages during the twenty years that precede oki times.
the Domesday Inquest. The following table shows them :
Villani Bordarii Servi Lord's Men's
teams teams
Teidana 1 , T. R. E. 5 3 4 2 4
T. R. W. 1 17 3 3
Waldena 2 , T. R, E. 66 17 16 8 22
T. R. W. 46 40 20 10 22
Hame 3 , T. R. E. 32 16 3 5 8
T. R. W. 48 79 3 4 12
Benefelda 4 , T. R. E. 10 2 7 3 7
T. R. W. 9 11 4 3 4
Wimbeis 5 , T. R. E. 26 18 6 3 21
T. R, W. 26 55 3 15
These are bub 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 6 , 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 7 .
But, it will be said, though the ' bundles ' of strips be cut Devasta-
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
1 D. B. ii. 47 b. 2 Ibid. 61. 3 Ibid. 64.
4 Ibid. 65. 5 Ibid. 69 b. 6 See above, p. 35.
7 For this reason I do not feel sure that Mr P. 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.
364 The Hide.
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 1 ), 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 wilder-
ness 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
1 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
S'. Leonards, Co. Gloucester. Mr Seebohm, op. cit. 4, 382, claims the word
balk for the Welsh; but see New Eng. Diet, and Skeat, Etymol. Diet. In this,
as in many another case, the Welsh claim to an English word has broken down.
Measures and Fields. 365
even more 1 , 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 2 . Agrarian history
becomes more catastrophic as we trace it backwards.
And, putting on one side the ravages of war and famine, Village
we must call to mind the numerous hints that our map gives colomes -
us of village colonization 3 . 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 4 . 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 5 .
Therefore we must not trust a method of husbandry or a Antiquity
scheme of land-measures much further than we can see it. threefield
Nothing, for example, could be rasher than the assumption s y stem -
that the 'three-course system' of tillage was common in the
England of the seventh century 6 . We have a little evidence
that it was practised in the eleventh 7 , perhaps some evidence,
1 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 prioe
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.
2 Geatfled's will, K. 925 (iv. 263). 3 See above, p. 14.
4 Observe the clumsy nomenclature illustrated by K. 816 (iv. 164), a deed
forged for the Confessor: 'Middletun et ofter Middletun...Horningdun et ofler
Horningdun...Fifehyda et ofter Fifehyda.'
8 See in this context the interesting letter of Bp. Denewulf to Edward the
Elder, K. 1039 (v. 166). An estate of 72 hides, a very large estate, came to tho
bishop almost waste. He prides himself on having now tilled 90 acres!
6 A good programme of this system is given by Cunningham, Growth of
English Industry, i. 71.
7 Eectitudines, 4, 3 ; Seebohm, Village Community, 141. Mr Seebohm's
inference is ingenious and plausible. See also Andrews, Old English Manor,
218.
366 The Hide.
that it was not unknown in the ninth 1 . But 'the two-course
system ' can be traced as far 2 , and seems to have been as
common, if not commoner, in the thirteenth century 3 . 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 4 . An agriculture of this kind was not
unknown in the Yorkshire of the fourteenth century 6 , and in-
deed we read that in the eighteenth 'one crop and two fallows'
was the traditional course in the open field of a Suffolk village 6 .
Differences We have time enough on our hands. Between Domesday
tL^differ- Book and the withdrawal of the legions lies as long an interval
shires. as ^^ wn j c h 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
1 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.
2 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 secra on flaem twain
feldan dallandes.'
3 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 stint 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.
4 Meitzen, op. cit. ii. 592.
8 Turton, Forest of Pickering (North Eiding Record Society), 148 ff. Twenty
years ago A. E. enclosed an acre ; sown eight times with spring corn ; value of
a sown acre Is., of an unsown, 4d. Twenty-two years ago E. C. enclosed a
rood ; sown seven times with oats, value 6'?. a year ; value, when unsown, Id. a
year. In the same book are many instances of a husbandry which alternates
oats with hay.
6 Scrutton, Commons and Common Fields, 118, citing a Report to the Board
of Agriculture.
Measures and Fields. 367
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 1 , 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.
Moreover there are upon the face of our map many cases New and
which seem to tell us that in the oldest days the smallest kges! "
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 S l . Mary the Virgin, Wiggen-
hall S l . German, Wiggenhall S fc . Peter, Wiggenhall S*. Mary
Magdalen, Tilney cum Islington, Tilney All Saints, Tilney
S l . Lawrence, Terrington S 4 . Clement, Terrington S l . John, Wai-
pole SI Peter, Walpole S*. Andrew 2 . 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
1 Ine, 63-68, 70. See above, p. 238.
2 A very fine instance is found on the north coast of Norfolk : Burnham
Deepdale, B. Norton, B. Westgate, B. Button, B. Thorpe, B. Overy. As to this
see Stevenson, E. H. B. xi. 304.
measures.
368 The Hi<l<>.
rectangular piece of it 1 . 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 Ger-
many 2 . 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 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, undei* 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
1 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.
2 See above, p. 355.
Measures and Fields. 369
no reason why the rods employed in two neighbouring villages
should be strictly or even approximately equal 1 . 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 ulti-
mate 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.
The whole story, if ever it be told at length, will be Slow-
intricate ; but we believe that a general persuasion that land- uniformity.
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, ' ]?at is to say, a mekill man and
a man of messurabill statur and of a lytill man 2 .' 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 3 . Instead of taking the 'thoume' of 'a man of mes-
surabill statur' for your inch, you are to take three barley-corns,
'iii bear cornys gud and chosyn but tayllis (i.e. without the
tails)' 4 . But the twelfth century was drawing to an end before
1 Fines (ed. Hunter) i. 242 : ' sex acras terrae mensuratas per legalem
perticam eiusdem villae [de Haveresham].'
2 Acts of Parliament of Scotland, i. 309.
3 Schrnid, Gesetze, App. XII. : 'three feet and three hand breadths and three
barley corns.'
4 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.
M. 24
370 The Hide.
any decisive step was taken to secure uniformity even in the
measurement of cloth. In Richard L's day guardians of
weights and measures are to be appointed in every county,
city and borough ; they are to keep iron ulnae 1 . 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 2 .
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 3 . 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 distri-
bution of iron ulnae was important. An equation was estab-
lished 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 4 .
Superficial The scheme of computation that we know as 'superficial
measure. measure ' was l on g m making itself part of the mental fur-
niture 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
Probably, like many of the documents with which it is associated, it is a mere
note which lawyers copied into their statute books.
1 Hoveden, iv. 33: 'et uliia sit ferrea.' 2 Britton, ii. 189.
8 Magna Carta is careful of wine, beer, corn and cloth ; not of land.
4 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.' Ducauge, B. v. ulna, gives examples from the Monasti-
con. 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.
Measures and Fields. 371
if an acre is x perches long it is y perches wide 1 . 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 esti-
mates of mean diameters. If we go back to an earlier time,
the less we think of 'superficial measure' the better 2 .
Let us recall the main features of our modern system, The mo-
... . TIT- deru SY8 '
giving them the names that they bore in medieval Latin. tem.
Linear Measure.
12 inches (pollices) = \ foot (pes); 3 feet = l yard (ulna); 5 '5 yards
= 1 rod, pole, perch (virga, pertica, perca) ; 40 perches = 1 furlong (quaren-
tina); 8 furlongs = 1 mile (mille) ; 12 furlongs = 1 leuua, leuca, leuga
(league) 3 .
Superficial Measure.
144 square inches = 1 square foot; 9 square feet = l square yard;
30-25 square yards = 1 square perch ; 40 square perches = 1 rood ; 4 roods
= 1 acre 4 .
1 See the apocryphal Statute of Admeasurement, Stat., vol. i. p. 206.
2 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 Bar iSaet land unbradest is 8er hit sceol beon eahtatyne fota brad."
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.
4 Our foot is '30479 meters. Our perch is very close to 5 meters. Our aero
40-467 ares. A hide of 120 acres would be 48'56 hectares.
242
372
The Hide.
The an-
cient ele-
ments of
land mea-
sure.
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.
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 gad 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 1 ,
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
1 Statutes of the Eealm, i. 206 : ' Tres pedes faciunt ulnam.' Though this
equation gets established, the ulna or cloth-yard seenis to start by being an
arm's length. See the story that Henry I. made his own arm a standard : Will.
Malmesb. Gesta Kegum., 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.
Measures and Fields. 373
\ __^_
which varies from 28 to 40 acres 1 . 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.
So we start with the human foot, the day's ploughing and TheGer-
a rod. How much borrowing there has been in this matter m
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 2 . 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 s .
It is very probable that in England this rule prevailed English
at a remote time. Throughout the middle ages and on to acres '
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 4 . In
Domesday Book and thence onwards the common Latin for
furlong is quarentina, and this tells us of furrows that are forty
1 Second Report of Commissioners for Weights and Measures, Parliamentary
Papers, 1820, Eeports, vol. vii.
2 As to all this see Meitzen, op. cit. i. 272 fol.
3 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.
4 Morgan, England under the Normans, 19.
acres.
acres.
374 The Hide.
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 1 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 2 ; more at present we
Small 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 3 : In Bedfordshire it
was 'sometimes 2 roods.' In Dorsetshire 'generally 134 [in-
stead 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 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 4 . 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 6 .
Larpe In northern districts the ' customary ' acre grows larger.
In Lincolnshire it is said to be ' 5 roods, particularly for copy-
hold land ' ; but small acres were known there also 6 . In
Staffordshire, ' nearly 2| 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
1 Pollock, E. H. B. xi. 218.
8 Morgan, op. cit. 19, citing Monasticon, iv. 421.
3 Second Report of the Commissioners for Weights and Measures, Parlia-
mentary 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.
4 See below, p. 382. 6 Compare Meitzen, op. cit. ii. 560.
6 Morgan, op. cit. 22.
Measures and Fields. 375
to a rod of 19^ 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. Kods of 18, 19, 21, 22| 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 1 . 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.
There has been variety enough. Even if the limits of Anglo-
variation are given by rods of 12 and 24 feet, this will enable rodsana
one acre to be four times as large as another. Whether before acres '
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 2 , 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 3 . In this province we need not expect
many Norman novelties. We see from Domesday Book that
the Frenchmen introduced the ancient Gallic arjpentum* as
a measure for vineyards 5 ; but most of the vines were of
1 Anonymous Husbandry, see Walter of Henley, ed. Lamond, p. 69.
2 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 ' = ' J>reo 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.
3 Meitzen, op. cit. ii. 554. This virga regalis is set down at 4-70 meters ;
our statute perch stands very close to 5 meters.
4 Meitzen, op. cit. i. 278. 5 Ellis, Introduction, i. 116.
ill-Tl'S.
376 The Hide.
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 1 . In Normandy
the perches seem to have ranged upwards from 1G to 25 feet 2 ;
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 3 .
Customary But we must be cautious in drawing inferences from loose
forest D reports about 'customary' measures. Village maps and village
fields have yet to be seriously studied. We may in the mean-
while 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 4 . Possibly men have found a long rod con-
venient when they have large spaces to measure, but we fancy
that the true explanation would illustrate the influence exer-
cised 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 5 .
1 The use of quarentina for furlong may be due to the Normans.
2 Delisle, Etudes sur la condition de la classe agricole en Normandie, 531-2.
3 We find from D. B. i. 166 that there was a royal sextarius ; but (i. 162,
238) other sextarii were in use.
4 Meitzen, op. cit. ii. 564. Thus in Koln, 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.
5 Eegistr. Honor. Bichemund., 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 pert icam xx. pedum,' though by this time the
Measures and Fields. 377
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.
Whether in its origin the land-measuring rod is a mere The acre
representative of a certain number of feet or is some instru- day's work
ment 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 1 . Possibly the
width of four oxen yoked abreast has exercised some influence
upon its length 2 . 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 3 ; 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 4 . Now, when
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 3 ;
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.
1 Morgan, op. cit. 27, suggests a double goad. The gad of modern Cam-
bridgeshire has been a stick 9 feet long ; but the surveyor put eight into the
acre-breadth, reckoning two of these gads 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.
2 Seebohm, op. cit. 119. Welsh evidence seems to point this way.
3 K. 529 (iii. 4) : '12 ceceras msedwa.' K. 549 (iii. 33). K. 683 (iii. 263).
4 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.
378 The Hide.
compared with their foreign cousins, our statute perch is a long
rod and our statute acre is a decidedly large ' day- work- unit 1 .'
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 ^Elfric's dialogue the ploughman complains that each day
he must till 'a full acre or more 2 .' His successor, the poetic
Piers, had only a half-acre to plough 3 . 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 4 . 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 5 . Five centuries later another enlightened agri-
culturist, 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 6 '. Mr Young could
not tell us of ' these vile remnants of barbarity without a great
1 Meitzen, op. cit., ii. 565. The rods known in Germany range upwards
from very short South German rods which descend from the Eoman 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.
2 Seebohm, op. cit. 166.
3 Seebohm, op. cit. 19.
4 Thus e.g. Glastonbury Eentalia, 68 : 'if he has eight oxen he shall plough
every Thursday [during certain seasons] three roods [perticatas].'
5 Walter of Henley, 9.
6 Tour through the Southern Counties, ed. 3 (1772), pp. 298-301.
Measures and Fields. 379
degree of disgust 1 '. 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 dimmish 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 2 .
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 3 .
At length we reach the fields, and at once we learn that The real
there is something unreal in all our talk of acre and half-acre fields,
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 4 .
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.
Let us recall a few features of the common field, though The 'shots.'
they will be familiar to all who have read Mr Seebohm's book 5 .
1 Tour through the Southern Counties, p. 127.
2 Walter of Henley, 9.
3 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.
4 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.
5 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).
380 The Hide.
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 docu-
ments call culturae 1 . 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 2 . To such differences our
ancestors were keenly alive. Hence the dispersion of the strips
which constitute a single tenement.
Delimits- But to make 'shots' which should be rectangular and just
shots. 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
1 As to the names of culture 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 -huge (appa-
rently 0. E. leak, gen. dat. leage) : 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.
2 Glastonbury Rentalia, 180, 195, 208.
Measures and Fields. 381
.-
see that even these patches have been allotted either as acres
or as half-acres.
Therefore, when we are dealing with medieval documents, The real
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 1 . We have a map of 'the village of
Whitehall 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 par-
ticulars 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 lacobi iij .'
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. IE.
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
1 Sixteen Old Maps : Oxford, Clarendon Press, 1888.
382 The Hide.
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 belouginge 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. B. 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 suppo-
sition that at Whitehill men had measured land by measures
differing from our statutory standards 1 . 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 2 .
Varying 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. Eic. 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.
1 The rod, however, must have been very short ; perhaps it had as few as
12 feet.
2 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.
Measures and Fields. 383
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.
If a shot had a curved boundary, little or no pains seem irregular
to have been taken to equalize the strips that lay within it
by making additional width serve as a compensation for de-
ficient 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 E. 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 con-
structed ; 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 1 .
It is probable that the whole system was made yet more The seiions
visible by the practice of ploughing the land into ' beds ' or r
ridges, which has but recently fallen out of use. In our Latin
documents these ridges appear as seiions (seliones). In English
they were called ' lands,' for the French sillon struck no root in
our language. Anyone who has walked through English grass
1 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 0. C. Pell in Domesday
Studies, i. 296.
384 The Hide.
fields will know what they looked like, for they triumph over
time and change 1 . Now it would seem that a fairly common
usage made four selions in each acre 2 ; 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 ob-
serving 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 be-
cause in crossing it he traversed three or six terrestrial waves 3 .
Acres divi- 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 4 ' 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 B .
1 For an explanation of this mode of ploughing, see Meitzen, op. cit. 84.
2 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.
3 The Gloucester Corporation Kecords, ed. Stevenson (1893), should be con-
sulted. 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 J>istelege near Durand's land... an acre and a half being three selions...
half an acre being two selions. ..an acre of five selioiis...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.
4 On Mr Mowat's map of Eoxton a quarter-acre strip is a yeard.
5 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 Glastoubury Bentalia, 27. So in
Normandy: Delisle, Etudes sur la condition de la classe agricole, 535. So in
Measures and Fields. 385
How then does it happen that these terms ' virgate ' and The vir-
' yard of land,' though given to a quarter of an acre, are yet g8
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 1 , a virgata in every acre, and therefore a rood,
a yard, a virga, a virgata of a typical tenement 2 .
No doubt it is clumsy to have only one term for two The double
quantities, one of which is perhaps a hundred-and-twenty times "" S
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 ex-
ample, rod (rood) will mean one thing, rtfd 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 3 .' When men have not appre-
hended '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.
We have now arrived at a not insignificant truth. The The yard-
virgate or yard-land of 30 acres or thereabouts is not a primary fraction of
unit like the hide, the rod, the acre. It is derivative ; it is a hlde>
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, per-
haps is rarely composed, of scattered quarter-acres ; quartering
acres is an uneconomical process ; it leads to waste of time.
France : Ducange, s. v. virciata from a Eegister of the Chamber of Accounts :
'Quadraginta perticae faciunt virgatam : quatuor virgatae faciunt acram.' Meit-
zen, op. cit. i. 95: in Kalenberg a strip that is one rod in breadth is called a
Gert (our yard).
1 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.
2 So again, if a iugum is quartered, its quarter can be called a virgate. See
Denman Ross, Hist, of Lanuholding, 140; Bound, Feudal England, 108.
3 See above, p. 372.
M. 25
386
The Hide.
The yard-
land in
laws aud
charters.
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.
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 1 . 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 2 . 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.
1 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 secra.' K. 339 (ii. 150): 'sextig ascera earSlondes..^^
sextig.' K. 586 (iii. 118): '30 aecra on 'Saem twaem feldan.' K. 612 (iii. 159):
' 2 hida buton 60 secran.' K. 633 (iii. 188) : ' 3 mansas ac 30 iugerum dimen-
sionem.' K. 695 (iii. 295): '40 agros.' K. 759 (iv. 59): '30 akera.' K. 1 782
(iv. 106): 'fiftig fficera.' K. 1154 (v. 303): '36 sekera yrSlandes.' K. 1161 (v.
315): 'ter duodenas segetes ' = ' 36 aecera yrSlandes.' K. 1211 (v. 393): "25
segetes.' K. 1218 (vi. 1) : '14 hida and... 40 ascera.'
2 Probably it occurs in Ine 67 ; certainly in Kectitudines 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) : ^Ethelred grants
'3 mansas et 3 perticas.' K. 1306 (vi. 163): JSthelred 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 quntrentem.' 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 perticn, virga, gyrd used as a measure of
mere length. See above, p. 375, note 2, where a few are cited.
Measures and Fields. 387
As an unit larger than the acre men have known nothing The hide
but the hide, the manse, the land of one family, the land of a ineasure.
one householder. This is what we find in England: also it
is found in Germany and Scandinavia 1 . 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.
After a certain sort the hide does become a measure. Bede The hide as
does not believe that if the families in the Isle of Wight were a
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 2 or
of two hides less sixty acres 3 . 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
1 Meitzeu, 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 Manttil, a man's share. The last word about the tenmannetale of Yorkshire
has not been said.
2 K. 633 (iii. 188).
3 K. 612 (iii. 159) : 'landes sumne deel, Sat synd 2 hida, buton 60 ascran Sast
haeft se arcebisceop genumen into Cymesige to his hame him to hwastelamle.'
-2
388 The Hide.
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 1 .
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 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 2 . 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 riot have arable land unless he has pasture
rights. Arable land is land that is ploughed ; ploughing im-
plies 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 un-
important, 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
1 Rot. Hund. ii. 575. After going through the whole calculation, I have
satisfied myself that the sum is worked in this way.
2 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
Measures and Fields. 389
Domesday's language pastura sufficiens 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 there-
fore 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
K arable acres, and nothing need be said of any other kind
of ground.
We are going to argue that the Anglo-Saxons give 120 acres, The hide of
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 bide, it is put at 120 acres 1 . 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 2 . 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.
Supposing for a moment that we bring home this equation Real a ? d
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 
