wording of the instructions which defined the duty of at least one party
of royal commissioners[59]. We are about to speak of the mode in which
the occupants of the soil are classified by Domesday Book, and therefore
this document deserves our best attention. It runs thus:--The King's
barons inquired by the oath of the sheriff of the shire and of all the
barons and of their Frenchmen and of the whole hundred, the priest,
reeve and six _villani_ of every vill, how the mansion (_mansio_) is
called, who held it in the time of King Edward, who holds it now, how
many hides, how many plough-teams on the demesne, how many plough-teams
of the men, how many _villani_, how many _cotarii_, how many _servi_,
how many _liberi homines_, how many _sochemanni_, how much wood, how
much meadow, how much pasture, how many mills, how many fisheries, how
much has been taken away therefrom, how much added thereto, and how much
there is now, how much each _liber homo_ and _sochemannus_ had and
has:--All this thrice over, to wit as regards the time of King Edward,
the time when King William gave it, and the present time, and whether
more can be had thence than is had now[60].
[Basis of classification.]
Five classes of men are mentioned and they are mentioned in an order
that is extremely curious:--_villani_, _cotarii_, _servi_, _liberi
homines_, _sochemanni_. It descends three steps, then it leaps from the
very bottom of the scale to the very top and thence it descends one
step. A parody of it might speak of the rural population of modern
England as consisting of large farmers, small farmers, cottagers, great
landlords, small landlords. But a little consideration will convince us
that beneath this apparent caprice there lies some legal principle. We
shall observe that these five species of tenants are grouped into two
genera. The king wants to know how much each _liber homo_, how much each
_sochemannus_ holds; he does not want to know how much each _villanus_,
each _cotarius_, each _servus_ holds. Connecting this with the main
object of the whole survey, we shall probably be brought to the guess
that between the sokeman and the villein there is some broad distinction
which concerns the king as the recipient of geld. May it not be
this:--the villein's lord is answerable for the geld due from the land
that the villein holds, the sokeman's lord is not answerable, at least
he is not answerable as principal debtor for the geld due from the land
that the sokeman holds? If this be so, the order in which the five
classes of men are mentioned will not seem unnatural. It proceeds
outwards from the lord and his _mansio_. First it mentions the persons
seated on land for the geld of which he is responsible, and them it
arranges in an 'order of merit.' Then it turns to persons who, though in
some way or another connected with the lord and his _mansio_, are
themselves tax-payers, and concerning them the commissioners are to
inquire how much each of them holds. Of course we can not say that this
theory is proved by the statement that lies before us; but it is
suggested by that statement and may for a while serve us as a working
hypothesis. If this theory be sound, then we have here a distinction of
the utmost importance. For one mighty purpose, the purpose that is
uppermost in King William's mind, the _villanus_ is not a landowner, his
lord is the landowner; on the other hand the _sochemannus_ is a
landowner, and is taxed as such. We are not saying that this is a purely
fiscal distinction. In legal logic the lord's liability for the geld
that is apportioned on the land occupied by his villeins may be rather
an effect than a cause. A lawyer might argue that the lord must pay
because the occupier is his _villanus_, not that the occupier is a
_villanus_ because the lord pays. And yet, as we may often see in legal
history, there will be action and reaction between cause and effect. The
geld is no trifle. Levied at that rate of six shillings on the hide at
which King William has just now levied it, it is a momentous force
capable of depressing and displacing whole classes of men. In 1086 this
tax is so much in everybody's mind that any distinction as to its
incidence will cut deeply into the body of the law.
[Our course.]
Now this classification of men we will take as the starting point for
our enterprise. If we could define the _liber homo_, _sochemannus_,
_villanus_, _cotarius_, _servus_, we should have solved some of the
great legal problems of Domesday Book, for by the way we should have had
to define two other difficult terms, namely _manerium_ and _soca_. It
would then remain that we should say something of the higher strata of
society, of earls and sheriffs, of barons, knights, thegns and their
tenures, of such terms as _alodium_ and _feudum_, of the general theory
of landownership or landholdership. We will begin with the lowest order
of men, with the _servi_, and thence work our way upwards. But our
course can not be straightforward. There are so many terms to be
explained that sometimes we shall be compelled to leave a question but
partially answered while we are endeavouring to find a partial answer
for some yet more difficult question.
FOOTNOTES:
[22] D. B. ii. 109 b: 'Hundret de Grenehou 14 letis.' Ib. 212 b:
'Hundret et Dim. de Clakelosa de 10 leitis.' Round, Feudal
England, 101.
[23] Some of them are mentioned by Ellis, Introduction, i. 34-9.
[24] D. B. i. 184 b: 'Haec terra non geldat nec consuetudinem dat
nec in aliquo hundredo iacet'; i. 157 'Haec terra nunquam
geldavit nec alicui hundredo pertinet nec pertinuit'; i. 357 b
'Hae duae carucatae non sunt in numero alicuius hundredi neque
habent pares in Lincolescyra.'
[25] D. B. i. 207 b: 'Jacet in Bedefordscira set geldum dat in
Huntedonscire'; i. 61 b 'Jacet et appreciata est in Gratentun
quod est in Oxenefordscire et tamen dat scotum in Berchescire';
i. 132 b, the manor of Weston 'lies in' Hitchin which is in
Hertfordshire, but its _wara_ 'lies in' Bedfordshire, i.e. it
pays geld, it 'defends itself' in the latter county; i. 189 b,
the _wara_ of a certain hide 'lies in' Hinxton which is in
Cambridgeshire, but the land belongs to the manor of
Chesterford and therefore is valued in Essex. D. B. i. 178;
five hides 'geld and plead' in Worcestershire, but pay their
farm in Herefordshire.
[26] D. B. i. 157 b: 'Has [terras in Oxenefordscire] coniunxit
terrae suae in Glowecestrescire'; i. 209 b 'foris misit de
hundredo ubi se defendebat T. R. E.'; i. 50 'et misit foras
comitatum et misit in Wiltesire.' See also Ellis, i. 36.
[27] See Round, Feudal England, p. 118. Mr Round seems to think that
the commissioners made a circuit through the hundreds. I doubt
they did more than their successors the justices in eyre were
wont to do, that is, they held in the shire-town a moot which
was attended by (1) the magnates of the shire who spoke for the
shire, (2) a jury from every hundred, (3) a deputation of
_villani_ from every township. See the Yorkshire and
Lincolnshire _Clamores_ (i. 375) where we may find successive
entries beginning with (_a_) _Scyra testatur_, (_b_)
_Westreding testatur_, (_c_) _Testatur wapentac_. Strikingly
similar entries are found on the eyre rolls. As Sir F. Pollock
(Eng. Hist. Rev. xi. 213) remarks, it is misleading to speak of
the Domesday 'survey'; Domesday Inquest would be better.
[28] See Round, Feudal England, p. 44.
[29] Inquis. Com. Cantab. 60.
[30] See the table in Round, Feudal England, p. 50. I had already
selected this beautiful specimen before Mr Round's book
appeared. He has given several others that are quite as neat.
[31] Of course we take no account of urban parishes.
[32] Eyton's laborious studies have made this plain as regards some
counties widely removed from each other; still, _e.g._ in his
book on Somerset, he has now and again to note that names which
appear in D. B. are obsolete.
[33] Inq. Com. Cant. 60-1.
[34] D. B. i. 31.
[35] D. B. i. 41. We shall return to this matter hereafter.
[36] A good many cases will be found in Essex and Suffolk.
[37] Inq. Com. Cantab. 51, 53.
[38] Ibid. 47.
[39] Ibid. 29.
[40] Maitland, Surnames of English Villages, Archaeological Review,
iv. 233.
[41] We do not mean to imply that there were not wide stretches of
waste land which were regarded as being 'extra-villar,' or
common to several vills.
[42] Hist. Eng. Law, i. 547.
[43] This of course would not be true of cases in which the lands of
various villages were intermixed in one large tract of common
field. As to these 'discrete vills,' see Hist. Eng. Law, i.
549.
[44] This name-giving cluster will usually contain the parish church
and so will enjoy a certain preeminence. But we are to speak of
a time when parish churches were novelties.
[45] See Meitzen, Siedelung und Agrarwesen der Germanen, especially
ii. 119 ff.
[46] When the hamlets bear names with such ancient suffixes as
-_ton_, -_ham_, -_by_, _-worth_, _-wick_, _-thorpe_, this of
course is in favour of their antiquity. On the other hand, if
they are known merely by family names such as _Styles's_,
_Nokes's_, _Johnson's_ or the like, this, though not conclusive
evidence of, is compatible with their modernity. Meitzen thinks
that in Kent and along the southern shore the German invaders
founded but few villages. The map does not convince me that
this inference is correct.
[47] When more than five-and-twenty team-lands or thereabouts are
ascribed to a single place, we shall generally find reason to
believe that what is being described is not a single vill. See
above, p. 13.
[48] Inq. Com. Cant. 51 fol. In a few cases our figures will involve
a small element of conjecture.
[49] D. B. i. 248. We have tried to avoid vills in which it is
certain or probable that some other tenant in chief had an
estate.
[50] D. B. i. 88. We have tried to make sure that no tenant in chief
save the bishop had land in any of these vills, and this we
think fairly certain, except as regards Harptree and Norton.
There are now two Harptrees, East and West, and four or more
Nortons.
[51] We take the figures from Ellis, Introduction, ii. 417 ff.
[52] Very possibly this figure is too low. There is reason to think
that some of the free men and sokemen of these counties get
counted twice or thrice over because they hold land under
several different lords. On the other hand Ellis (Introduction,
ii. 491) would argue that the figure is too high. But the words
_Alii ibi tenent_ which occur at the end of numerous entries
mean, we believe, not that there are in this vill other
unenumerated tillers of the soil, but that the vill is divided
between several tenants in chief.
[53] D. B. i. 162 b.
[54] Ellis's figures are: England 283,242: the three counties
72,883.
[55] We take these figures from Ellis.
[56] Lay Subsidy, 25 Edw. I. (Yorkshire Archaeological Society), pp.
xxxi-xxxv. Fractions of a pound are neglected.
[57] Powell, The Rising in East Anglia, 120-3. The great decrease
between 1377 and 1381 in the number of persons taxed, we must
not try to explain.
[58] See the serviceable maps in Seebohm, Village Community, 86. But
they seem to treat Yorkshire unfairly. It has 5·5 per cent. of
sokemen.
[59] This is found at the beginning of the Inquisitio Eliensis; D.
B. iv. 497; Hamilton, Inquisitio, 97. See Round, Feudal
England, 133 ff.
[60] We must not hastily draw the inference that every party of
commissioners received the same set of instructions. Perhaps,
for example, carucates, not hides, were mentioned in the
instructions given to those commissioners who were to visit the
carucated counties. Perhaps the non-appearance of _servi_ in
Yorkshire and Lincolnshire may be due to no deeper cause.
§ 2. _The Serfs._
[The serfs in Domesday Book.]
The existence of some 25,000 serfs is recorded. In the thirteenth
century _servus_ and _villanus_ are, at least among lawyers, equivalent
words. The only unfree man is the 'serf-villein' and the lawyers are
trying to subject him to the curious principle that he is the lord's
chattel but a free man in relation to all but his lord[61]. It is far
otherwise in Domesday Book. In entry after entry and county after county
the _servi_ are kept well apart from the _villani_, _bordarii_,
_cotarii_. Often they are mentioned in quite another context to that in
which the _villani_ are enumerated. As an instance we may take a manor
in Surrey[62]:--'In demesne there are 5 teams and there are 25 _villani_
and 6 _bordarii_ with 14 teams. There is one mill of 2 shillings and one
fishery and one church and 4 acres of meadow, and wood for 150 pannage
pigs, and 2 stone-quarries of 2 shillings and 2 nests of hawks in the
wood and 10 _servi_.' Often enough the _servi_ are placed between two
other sources of wealth, the church and the mill. In some counties they
seem to take precedence over the _villani_; the common formula is 'In
dominio sunt _a_ carucae et _b_ servi et _c_ villani et _d_ bordarii cum
_e_ carucis.' But this is delusive; the formula is bringing the _servi_
into connexion with the demesne teams and separating them from the teams
of the tenants. We must render it thus--'On the demesne there are _a_
teams and _b_ servi; and there are _c_ villani and _d_ bordarii with _e_
teams.' Still we seem to see a gently graduated scale of social classes,
_villani_, _bordarii_, _cotarii_, _servi_, and while the jurors of one
county will arrange them in one fashion, the jurors of another county
may adopt a different scheme. Thus in their classification of mankind
the jurors will sometimes lay great stress on the possession of plough
oxen. In Hertfordshire we read:--'There are 6 teams in demesne and 41
_villani_ and 17 _bordarii_ have 20 teams ... there are 22 _cotarii_ and
12 _servi_[63].'--'The priest, 13 _villani_ and 4 _bordarii_ have 6
teams ... there are two _cotarii_ and 4 _servi_[64].'--'The priest and
24 _villani_ have 13 teams ... there are 12 _bordarii_, 16 _cotarii_ and
11 _servi_[65].' A division is in this instance made between the people
who have oxen and the people who have none; _villani_ have oxen,
_cotarii_ and _servi_ have none; sometimes the _bordarii_ stand above
this line, sometimes below it.
[Legal position of the serf.]
Of the legal position of the _servus_ Domesday Book tells us little or
nothing; but earlier and later documents oblige us to think of him as a
slave, one who in the main has no legal rights. He is the _theów_ of the
Anglo-Saxon dooms, the _servus_ of the ecclesiastical canons. But though
we do right in calling him a slave, still we might well be mistaken were
we to think of the line which divides him from other men as being as
sharp as the line which a mature jurisprudence will draw between thing
and person. We may well doubt whether this principle--'The slave is a
thing, not a person'--can be fully understood by a grossly barbarous
age. It implies the idea of a person, and in the world of sense we find
not persons but men.
[Degrees of serfdom.]
Thus degrees of servility are possible. A class may stand, as it were,
half-way between the class of slaves and the class of free men. The
Kentish law of the seventh century as it appears in the dooms of
Æthelbert[66], like many of its continental sisters, knows a class of
men who perhaps are not free men and yet are not slaves; it knows the
_læt_ as well as the _theów_. From what race the Kentish _læt_ has
sprung, and how, when it comes to details, the law will treat him--these
are obscure questions, and the latter of them can not be answered unless
we apply to him what is written about the _laeti_, _liti_ and _lidi_ of
the continent. He is thus far a person that he has a small wergild but
possibly he is bound to the soil. Only in Æthelbert's dooms do we read
of him. From later days, until Domesday Book breaks the silence, we do
not obtain any definite evidence of the existence of any class of men
who are not slaves but none the less are tied to the land. Of men who
are bound to do heavy labour services for their lords we do hear, but we
do not hear that if they run away they can be captured and brought
back. As we shall see by and by, Domesday Book bears witness to the
existence of a class of _buri_, _burs_, _coliberti_, who seem to be
distinctly superior to the _servi_, but distinctly inferior to the
villeins, bordiers and cottiers. It is by no means impossible that they,
without being slaves, are in a very proper and intelligible sense unfree
men, that they have civil rights which they can assert in courts of law,
but that they are tied to the soil. The gulf between the seventh and the
eleventh centuries is too wide to allow of our connecting them with the
_læt_ of Æthelbert's laws, but still our documents are not exhaustive
enough to justify us in denying that all along there has been a class
(though it can hardly have been a large class) of men who could not quit
their tenements and yet were no slaves. As we shall see hereafter,
liberty was in certain contexts reckoned a matter of degree; even the
_villanus_, even the _sochemannus_ was not for every purpose _liber
homo_. When this is so, the _theów_ or _servus_ is like to appear as the
unfreest of persons rather than as no person but a thing.
[Prædial element in serfage.]
In the second place, we may guess that from a remote time there has been
in the condition of the _theów_ a certain element of praediality. The
slaves have not been worked in gangs nor housed in barracks[67]. The
_servus_ has often been a _servus casatus_, he has had a cottage or even
a manse and yardland which _de facto_ he might call his own. There is
here no legal limitation of his master's power. Some slave trade there
has been; but on the whole it seems probable that the _theów_ has been
usually treated as annexed to a tenement. The duties exacted of him from
year to year have remained constant. The consequence is that a free man
in return for a plot of land may well agree to do all that a _theów_
usually does and see in this no descent into slavery. Thus the slave
gets a chance of acquiring what will be as a matter of fact a
_peculium_. In the seventh century the church tried to turn this matter
of fact into matter of law. 'Non licet homini,' says Theodore's
Penitential, 'a servo tollere pecuniam, quam ipse labore suo
adquesierit[68].' We have no reason for thinking that this effort was
very strenuous or very successful, or that the law of the eleventh
century allowed the _servus_ any proprietary rights; and yet he might
often be the occupier of land and of chattels with which, so long as he
did his customary services, his lord would seldom meddle.
[The serf in criminal law.]
In the third place, we may believe that for some time past police law
and punitive law have been doing something to conceal, if not to
obliterate, the line which separates the slave from other men. A mature
jurisprudence may be able to hold fast the fundamental principle that a
slave is not a person but a thing, while at the same time it both limits
the master's power of abusing his human chattel and guards against those
dangers which may arise from the existence of things which have wills,
and sometimes bad wills, of their own. But an immature jurisprudence is
incapable of this exploit. It begins to play fast and loose with its
elementary notions. It begins to punish the criminous slave without
being quite certain as to how far it is punishing him and how far it is
punishing his master. Confusion is easy, for if the slave be punished by
death or mutilation, his master will suffer, and a pecuniary mulct
exacted from the slave is exacted from his master. Learned writers have
come to the most opposite opinions as to the extent to which the
Anglo-Saxon dooms by their distribution of penalties recognize the
personality of the _theów_. But this is not all. For a long time past
the law has had before it the difficult problem of dealing with crimes
and delicts committed by poor and economically dependent free men, men
who have no land of their own, who are here to-day and gone to-morrow,
'men from whom no right can be had.' It has been endeavouring to make
the lords answerable to a certain extent for the misdeeds of their free
retainers. If a slave is charged with a crime his master is bound to
produce him in court. But the law requires that the lord shall in very
similar fashion produce his free 'loaf eater,' his mainpast, nay, it has
been endeavouring to enforce the rule that every free man who has no
land of his own shall have a lord bound to produce him when he is
accused. Also it has been fostering the growth of private justice. The
lord's duty of producing his men, bond and free, has been becoming the
duty of holding a court in which his men, free and bond, will answer for
themselves. How far this process had gone in the days of the Confessor
is a question to which we shall return[69].
[Serf and villein.]
For all this however, we may say with certainty that in the eleventh
century the _servi_ were marked off from all other men by definite legal
lines. What is more, we may say that every man who was not a _theów_ was
in some definite legal sense a free man. This sharp contrast is put
before us by the laws of Cnut as well as by those of his predecessors.
If a freeman works on a holiday, he pays for it with his _healsfang_; if
a _theówman_ does the like, he pays for it with his hide or his
hide-geld[70]. Equally sharp is the same distinction in the Leges
Henrici, and this too in passages which, so far as we know, are not
borrowed from Anglo-Saxon documents. For many purposes 'aut servus aut
liber homo' is a perfect dilemma. There is no confusion whatever between
the _villani_ and the _servi_. The _villani_ are 'viles et inopes
personae' but clearly enough they are _liberi homines_. So also in the
Quadripartitus, the Latin translation of the ancient dooms made in Henry
I.'s reign, there is no confusion about this matter; the _theówman_
becomes a _servus_, while _villanus_ is the equivalent for _ceorl_. The
Norman writers still tell how according to the old law of the English
the _villanus_ might become a thegn if he acquired five hides of
land[71]; at times they will put before us _villani_ and _thaini_ or
even _villani_ and _barones_ as an exhaustive classification of free
men[72].
[The serf of the Leges.]