And as we go backwards the township seems to lose such definiteness as

is given to it by the police law of the thirteenth century[611]. This

was to be expected, for such law implies a powerful, centralized state,

which sends its justices round the country to amerce the townships and

compel these local communities to do their duties. Once and once only

does the township appear in the Anglo-Saxon dooms. This is in a law of

Edgar. If a man who is on a journey buys cattle, then on his return home

he must turn them onto the common pasture, 'with the witness of the

township.' If he fails to do so, then after five nights the townsmen are

to give information to the elder of the hundred, and in that case they

and their cattle-herd will be free of blame, and the man who brought the

cattle into the town will forfeit them, half to the lord and half to

the hundred. If, on the other hand, the townsmen fail in the duty of

giving information, their herd will pay for it with his skin[612]. The

township has very little organization of which the state can make use.

It does not seem even to have an 'elder' or head-man, and, from the

threat of a flogging, we may gather that its common herdsman will be a

slave. Purchases of cattle can not be made 'with the witness of the

township'; the purchaser ought to seek out two or three of those twelve

standing witnesses who are appointed for every hundred[613]. So again,

in the twelfth century we see the finder of a stray beast bringing it

into the vill; he conducts it to the church-door and tells his story to

the priest, the reeve and as many of the best men of the vill as can be

got together. Then the reeve sends to the four neighbouring vills, calls

in from each the priest, the reeve and three or four men and recounts

the tale in their presence. Then on the following day he goes to the

head-man of the hundred and puts the whole matter before him and

delivers up the beast to him, unless indeed the place where it was found

straying was within the domain of some lord who had sake and soke[614].

Here again, the organization of the township appears to be of a most

rudimentary kind. It has no court, unless its lord has sake and soke; it

has no power to detain an estray for safe custody. In this very simple

case it requires the help of other vills and must transmit the cause to

the hundred court. And so again, though there may be some reason for

thinking that at one time the murder fine--the fine payable if the

slayer of a foreigner was not arrested--was primarily exigible from the

vill in which the corpse was found, the hundred being but subsidiarily

liable, still this rule seems to have been soon abandoned and the burden

of the fine, a fine far too heavy for a single vill, was cast upon the

hundred[615]. For all this, however, the law knew and made use of the

township. The Domesday commissioners required the testimony of the

priest, the reeve and six _villani_ of every vill. So soon as the law

about suit to the hundred court becomes at all plain, the suit is due

rather from vills than from men, and the burden is discharged by the

lord of the vill or his steward, or, if neither of them can attend,

then by the priest, the reeve and four of the vill's best men[616].

[The free village and Norman government.]

How could these requirements be met by a vill which had no lord? It

would be a fair remark that the existence of such vills is not

contemplated by the Norman rulers. The men who will represent the vill

before the Domesday commissioners will in their eyes be _villani_. This

assumption is becoming true enough. We have seen Orwell full of sokemen;

in 1086 there is never a sokeman in it; there is no one in it who is

above the rank of a villein. Count Roger and Walter Giffard, Count Alan

and Geoffrey de Mandeville can make such arrangements about the suit of

Orwell, the reeveship of Orwell, as they think fit. Everywhere the

Frenchmen are consolidating their manors, creating demesne land where

their English _antecessores_ had none, devising scientific frontiers,

doing what in them lies to make every vill a manor. Thus is evolved that

state of things which comes before us in the thirteenth century. The

work of the foreigners was done so completely that we can see but very

little of the institutions that they swept away.

[Organization of the free village.]

On the whole, however, we shall do well not to endow the free township

of the Confessor's day with much organization. We may be certain that,

at least as a general rule, it had no court; we may doubt very gravely

whether it always had any elder, head-man, or reeve. Often it was a

small and yet a heterogeneous, and a politically distracted body. Some

of its members might be attached to the house of Godwin, some had sworn

to live and die for the house of Leofric. Just because it is free it has

few, if any, communal payments to make. Only if it comes under a single

lord will it have to render a provender rent, a _tailla_ or _gersuma_.

As a sphere for communal action there remains only the regulation of the

arable lands, the woods and waste. We can not say for certain that these

give scope for much regulation. The arable strips are held in severalty;

if by chance some of them are held in common, this in all probability is

a case rather of co-ownership than of communal ownership. The pasture

rights may well be regarded as appurtenances of the arable strips. The

practice of 'co-aration' need not be enforced by law; the man who will

not help his neighbours must be content to see his own land unploughed.

The course of agriculture is fixed and will not be often or easily

altered. The 'realism' which roots every right and duty in a definite

patch of soil, the rapid conversion of new arrangements into immemorial

customs, the practice of taking turn and turn about, the practice of

casting lots, these will do much towards settling questions such as our

modern imaginations would solve by means of a village council. No doubt,

from time to time a new departure is made; new land is reclaimed from

the waste, perhaps the pasture rights are stinted or redistributed, a

mill is built or a church is endowed;--but all this requires no periodic

assemblies, no organization that we dare call either permanent or legal.

Once in five years or so there may be something to be done, and done it

will be by a resolution of the villagers which is or calls itself an

unanimous resolution. If the Cambridgeshire townships had been

landowning corporations, each of them would have passed as a single unit

into the hands of some Norman baron. But this did not happen. On the

contrary, the Norman barons had to content themselves with intermixed

strips; the strips of Ælfgar's men went to Count Roger, the strips of

Edith's men went to Count Alan. We are far from denying the existence of

a communal sentiment, of a notion that somehow or another the men of the

vill taken as a whole owned the lands of the vill, but this sentiment,

this notion, if strong was vague. There were no institutions in which it

could realize itself, there was no form of speech or thought in which it

could find an apt expression. It evaded the grasp of law. At the touch

of jurisprudence the township became a mere group of individuals, each

with his separate rights[617].

FOOTNOTES:

[547] D. B. ii. 174: 'Hec villa fuit in duobus maneriis T. R. E.'

Ibid. i. 164: 'De his 2 villis fecit Comes W. unum manerium.'

[548] Inquisitio, 77-9.

[549] This result comes out correctly if 1H=4V=120A. For the state

of this vill T. R. W. see Round, Feudal England, 40.

[550] His plot at Orwell is said to belong to Harlton. Then at

Harlton we find an Achil with sokemen under him, and though in

D. B. he is described as a king's thegn, this is not

incompatible with his being the man of Harold for some of his

lands. At Barrington Achillus Danaus homo Haroldi has a

holding of 40 acres.

[551] Inquisitio, 86.

[552] Ibid. 68.

[553] Ibid. 43, 44, 45, 73, 76.

[554] D. B. i. 195.

[555] D. B. i. 139: 'De consuetudine 1 averam inveniebat cum Rex in

scyra veniebat, si non 5 den. reddebat.' D. B. i. 190,

'[Sochemanni in Fuleberne] reddunt per annum 8 libras arsas et

pensatas et unoquoque anno 12 equos et 12 inguardos si Rex in

vicecomitatu veniret, si non veniret 12 sol. et 8 den.; T. R.

E. non reddebant vicecomiti nisi averas et inguardos vel 12

sol. et 8 den. et superplus invasit Picot [vicecomes] super

Regem.'

[556] Wratworth has completely disappeared from the modern map; its

territory seems to be included in that of the present Orwell.

See Rot. Hund. ii. 559 and Lysons, Magna Britannia, ii. 243. A

small hamlet called Malton seems to represent it. Whitwell

also is no longer the name of a village, while the modern

Coton is not mentioned in D. B. There is now a Whitwell Farm

near the village of Coton, but in the parish of Barton. The

modern Coton does not seem to be the ancient Whitwell, for on

Subsidy Rolls we may find Whitwell annexed to Barton and Coton

to Grantchester.

[557] The figures in our first column represent the division of the

vill among the Norman lords. H. V. A. stand for Hides,

Virgates, Acres. By C. and B. we signify the Carucae and Boves

for which 'there was land.'

[558] There is some small error in this case.

[559] A small conjectural emendation.

[560] The Inq. Com. Cant. says 6 hides.

[561] An error of one hide in the particulars. The two records do

not fully agree.

[562] A small emendation justified by Inq. Eliensis (Hamilton, p.

110).

[563] Ælfgar died before King Edward; Freeman, Norman Conquest, ed.

3, iii. 469, places his death in or about 1062.

[564] The history of the earldoms during Edward's reign is

exceedingly obscure. See Freeman's elaborate note: Ibid., 555.

In particular Cambridgeshire seems to have lain now in one and

now in another earldom. Thus it comes about that

Cambridgeshire sokemen are commended some to Ælfgar, some to

Waltheof, some to Harold, some to Gyrth. Ælfgar, for example,

had at one time been earl in East Anglia. Men who had

commended themselves to an earl would, unless they 'withdrew

themselves,' still be his men though he had ceased to be earl

of their county.

[565] See above, p. 105. Observe how frequently our record speaks of

'sochemanni _homines_ Algari' and the like. These sokemen are

Ælfgar's men; but are not properly his sokemen.

[566] Inq. Com. Cant. 110. This is from the Inquisitio Eliensis.

Compare p. 83.

[567] Inq. Com. Cant. 77-8.

[568] Rot. Hund. ii. 558.

[569] One instance may suffice. In Sawston (Rot. Hund. ii. 575-80)

are three manors, _A_, _B_, _C_; _A_ has a sub-manor. One

Thomas Dovenel holds in villeinage of the lord of _A_; in

villeinage of the lord of _B_; in freehold of the lord of _B_;

in freehold of a tenant of the lord of _B_; in freehold of a

tenant of a tenant of the lord of _B_.

[570] Rot. Hund. ii. 580.

[571] On four out of the five manors the rent is 2_s._ 3_d._; on the

fifth 3_s._ 0_d._

[572] Inq. Com. Cant. 41.

[573] D. B. i. 137 b.

[574] D. B. i. 141 b.

[575] Inq. Com. Cant., pp. 108-110. As names of the Abbot of Ely's

sokemen in Meldreth and neighbouring villages we have Grimmus,

Alsi Cild, Wenesi, Alsi, Leofwinus, Ædricus, Godwinus,

Almarus, Aluricus frater Goduuini, Ædriz, Alsi Berd, Alricus

Godingessune, Wenestan, Alwin Blondus, Alfuuinus, Aluredus,

Alricus Brunesune, Alware, Hunuð, Hunwinus, Brizstanus. This

does not point to a preponderance of Norse or Danish blood.

[576] Owing to the wasted condition of Yorkshire, the information

that we obtain of the T. R. E. is meagre and perfunctory. But

what seems characteristic of this county is a holding of two

or three ploughlands which we might fairly call an embryo

manor.

[577] See the early extents in Cart. Rams. iii. Thus (242) at

Hemingford: 'R. V. tenet tres virgatas et dimidiam et sequitur

hundredum et comitatum.... R. H. tenet duas virgatas et

sequitur hundredum et comitatum.' Elsworth (249): 'R. filius

T. duas virgatas. Pro altera sequitur comitatum et hundredum;

pro altera solvit quinque solidos.' Brancaster (261): 'Cnutus

avus Petri tenebat terram suam libere in tempore Regis Henrici

et sequebatur comitatum et hundredum, et fuit quietus ab omni

servitio.' See also Vinogradoff, Villainage, 411 ff.

[578] Some thirty years ago the whole political world of England was

agitated by controversy about 'the compound householder.' Was

he to have a vote? The historian of the nineteenth century

will not treat the compound householders as forming one

homogeneous class of men whose general status could be marked

off from that of other classes. Nor, it is to be hoped, will

etymological guesses lead him to believe that the compound

householder held a compound house. He will say that a landlord

'compounded for' the rates of the aforesaid householder.

_Mutatis mutandis_ may not the villein have been the compound

householder of the eleventh century?

[579] D. B. ii. 204: '3 liberi homines ... semper arant cum 3

bobus.'

[580] D. B. ii. 184 b.

[581] D. B. ii. 192 b.

[582] D. B. i. 211.

[583] D. B. i. 218 b. Compare the 'dimidius porcus' of ii. 287.

[584] D. B. i. 213 b: 'Hanc terram tenuerunt homines villae

communiter et vendere potuerunt.'

[585] D. B. i. 210, 212 b, 213 b.

[586] D. B. i. 214: 'In Meldone Johannes de Roches occupavit iniuste

25 acras super homines qui villam tenent.' This is a vague

phrase.

[587] e.g. D. B. i. 112 b: 'Colsuen homo Episcopi Constantiensis

aufert ab hoc manerio communem pasturam quae ibi adiacebat T.

R. E. et etiam T. R. W. quinque annis.'

[588] D. B. ii. 339 b.

[589] D. B. i. 140 b.

[590] D. B. i. 75: 'tercia vero pars vel tercia quercus erat Comitis

Eduini.'

[591] D. B. ii. 404 b: 'et in tercio anno quarta pars mol[endini].'

[592] D. B. ii. 291 b.

[593] D. B. ii. 24 b.

[594] D. B. ii. 438.

[595] D. B. i. 83: 'sex taini in paragio,' 'quatuor taini in

paragio.' Ibid. 83 b: 'novem taini in paragio.' Ibid. 168 b:

'quinque fratres tenuerunt pro 5 maneriis et poterant ire quo

volebant et pares erant.'

[596] D. B. i. 96 b: 'dim. hida quam tenebat T. R. E. unus tainus in

paragio.' Ibid. 40: 'Brictric tenuit de episcopo in paragio.'

[597] But it was possible for several men to be holding in parage

and yet for each of them to have a separate _manerium_. This

seems to imply that their holdings were physically separate

and that each holding was separately liable for geld, though

as regards other matters, e.g. military service, the division

was ignored.

[598] D. B. i. 291.

[599] D. B. i. 145 b.

[600] D. B. i. 341.

[601] D. B. i. 354.

[602] D. B. i. 375 b: 'Siuuate et Alnod et Fenchel et Aschil

equaliter et pariliter diviserunt inter se terram patris sui

T. R. E. et ita tenuerunt ut si opus fuit expeditione Regis et

Siuuate potuit ire, alii fratres iuverunt eum. Post istum,

ivit alter et Siuuate cum reliquis iuvit eum; et sic de

omnibus. Siuuate tamen fuit homo Regis.'

[603] D. B. i. 206: 'sex sochemanni id est Aluuoldus et 5 fratres

eius habuerunt 4 hid. et dim. ad geldum.'

[604] D. B. i. 233: 'Hanc terram tenuerunt 2 fratres pro 2 maneriis,

et postea emit alter ab altero partem suam et fecit unum

manerium de duobus T. R. E.'

[605] D. B. i. 127 b: 'Hoc manerium tenent villani ad firmam

canonicorum.'

[606] D. B. i. 162 b.

[607] D. B. i. 69.

[608] D. B. ii. 118 b Yarmouth: 'De gersuma has 4 libras dant

burgenses gratis et amicitia.'

[609] Thus D. B. iv. 568: 'Due ville reddunt 30 sol. de cornagio.'

Ib. 570: 'Queryngdonshire reddit 76 sol. de cornagio.'

[610] Black Book of Peterborough, _passim_.

[611] Hist. Engl. Law, i. 550.

[612] Edgar IV. 8. 9.

[613] Ibid. 6.

[614] Leg. Edw. Conf. 24.

[615] Leg. Edw. Conf. 15. Compare Leg. Henr. 91; Leg. Will. Conq. I.

22; Leg. Will. Conq. III.. 3.

[616] Leg. Henr. 7 § 7.

[617] It is possible that the entry (i. 204) which tells how the

sokemen of Broughton enjoyed the smaller _wites_ points to a

free village court; but we have put another interpretation

upon this; see above, p. 99.

§ 8. _The Feudal Superstructure._

[The higher ranks of men.]

It remains that we should speak very briefly of the higher ranks of men

and the tenure by which they held their land. Little accurate

information can be extorted from our record. The upper storeys of the

old English edifice have been demolished and a new superstructure has

been reared in their stead. It is not the office of Domesday Book to

tell us much even of the new nobility, of the services which the counts

and barons are to render to the king in return for their handsome

endowments:--as to the old nobility, that has perished. Still there are

some questions that we ought to ask.

[Dependent tenure.]

The general theory that all land tenure, except indeed the tenure by

which the king holds land in demesne, is dependent tenure, seems to be

implied, not only by many particular entries, but also by the whole

scheme of the book. Every holder of land, except the king, holds it of

(_de_) some lord, and therefore every acre of land that is not royal

demesne can be arranged under the name of some tenant in chief. Even a

church will hold its land, if not of the king, then of some other

lord[618]. The terms of the tenure are but very rarely described, for

Domesday Book is no feodary. Just now and again a tenure _in elemosina_

is noticed and in some of these cases this term seems already to bear

the technical sense that it will have in later days; the tenant owes a

spiritual, but no secular service[619]. A few instances of what later

lawyers would call a 'tenure by divine service,' as distinct from a

tenure in frank-almoin, may be found[620]. A few words here and there

betray the existence of tenure by knight's service and of castle

guard[621]. In the _servientes Regis_ who have been enfeoffed in divers

counties we may see the predecessors of the tenants by serjeanty[622].

We shall remark, however, the absence of those abstract terms which are

to become the names of the various tenures. We read of _servientes_,

_sochemanni_, _villani_, _burgenses_, but not of _seriantia_[623],

_socagium_, _villenagium_, _burgagium_. As we pursue our retrogressive

course through the middle ages, we do not find that the law of personal

condition becomes more and more distinct from the law of land tenure; on

the contrary, the two become less and less separable.

[_Feudum._]

It has sometimes been said that a feudal tenure was the only kind of

land tenure that the Norman conquerors could conceive. In a certain

sense this may be true, but we should have preferred to say that

probably they could not easily conceive a kind of tenure that was not

dependent:--every one who holds land (except he be the king) holds it of

someone else. The adjective 'feudal' was not in their vocabulary, and

their use of the word _feudum_--occasionally we meet the older

_feum_[624]--is exceedingly obscure. Very rarely does it denote a tenure

or a mass of rights; usually, though it may connote rights of a certain

order, it denotes a stretch of land; thus we may read of the fee of the

Bishop of Bayeux, thereby being meant the territory which the bishop

holds. Occasionally, however, we hear of a man holding land _in feudo_.

One instance may be enough to show that such a phrase did not imply

military tenure:--'William the Chamberlain held this manor _in feudo_ of

the Queen [Matilda] at a rent of £3 a year and after her death he held

it in the same fashion of the king[625].' All sense of militariness, and

all sense of precariousness, that the word has ever had in its

continental history, seems to be disappearing. Already the process has

begun which will make it applicable to every person who has heritable

rights in land. William the Chamberlain is, we take it, already a fee

farmer, that is, a rent-paying tenant with heritable rights[626]. As to

the word _beneficium_, which _feum_ or _feudum_ has been supplanting, we

shall hardly find it with its old meaning. It seems to be holding its

own only within the sphere of ecclesiastical rights, where the

'benefice' will survive until our own day[627].

[_Alodium._]

A yet more interesting and equally foreign word is not unfrequently

used, namely, _alodium_. The Norman commissioners deemed that a large

number of English tenants in Kent, Sussex, Surrey and Hampshire and some

in Berkshire had been _alodiarii_ or _aloarii_ and had held _in alodium_

or _sicut alodium_. The appearance of this term in one district and in

one only is far from proving that there had been anything peculiar in

the law of that district. It may well be a mere chance that the _liberi

homines_ of other counties are not called _alodiaries_. Still in

Hampshire, where alodiaries abounded, it was not every free man holding

land who had an _alod_[628]. Perhaps we shall be right in thinking that

the term pointed to heritability:--the free man who holds land but has

no _alod_ has only an estate for life. Certainly it does not mean that

the tenant has no lord. The alodiary may hold his alod 'of' his

lord[629]; he may owe service to his lord[630]; he may pay a

relief[631]; he may have no power 'to withdraw himself with his land'

from his lord[632]. The Norman lawyers had no speculative objection to

the existence of alodiaries; it in no way contradicted such doctrine of

tenure as they had formed. In 1086 there were still alodiaries in

Berkshire[633], and in royal charters of a much later day there is talk

of the alodiaries of Kent as of an existing class[634]. It is just

possible that William's commissioners saw some difference between

holding _in feudo_ and holding _in alodio_. If ever they contrasted the

two words, they may have hinted that while the _feudum_ has been given

by the lord to the man, the _alodium_ has been brought by the man to the

lord; but we can not be very certain that they ever opposed these terms

to each other[635]. Such sparse evidence as we can obtain from Normandy

strengthens our belief that the wide, the almost insuperable, gulf that

modern theorists have found or have set between 'alodial ownership' and

'feudal tenure' was not perceptible in the eleventh century[636]. It can

be no part of our task to trace the history of these terms _alodium_ and

_feudum_ behind the date at which they are brought into England, but

hereafter we shall see that here in England a process had been at work

which, had these terms been in use, would have brought the alod very

near to the feud, the feud very near to the alod.

[Application of the formula of dependent tenure.]

It is probable that this process had gone somewhat further in Normandy

than in England. It is probable that the Normans knew that in imposing

upon all English lands 'the formula of dependent tenure' they were

simplifying matters. They seem to think, and they may be pretty right in

thinking, that every English land-holder had held his land under (_sub_)

some lord; but apparently they do not think that every English

land-holder had held his land of (_de_) some lord. Not unfrequently they

show that this is so. Thus one Sigar holds a piece of Cambridgeshire

_of_ Geoffrey de Mandeville; he used to hold it _under_ Æsgar the

Staller[637]. We catch a slight shade of difference between the two

prepositions; _sub_ lays stress on the lord's power, which may well be

of a personal or justiciary, rather than of a proprietary kind, while

_de_ imports a theory about the origin of the tenure; it makes the

tenant's rights look like derivative rights:--it is supposed that he

gets his land from his lord. And at least in the eastern counties--so

it may well have seemed to the Normans--matters sadly needed

simplification. Even elsewhere and when a large estate is at stake they

can not always get an answer to the question 'Of whom was this land

holden[638]?' Still they thought that some of the greatest men in the

realm had held their lands, or some of their lands, of the king or of

someone else. The formulas which are used throughout the description of

Hampshire and some other counties seem to assume that every holder of a

manor, at all events if a layman, had held it _of_ the king, if he did

not hold it _of_ another lord. Tenure _in feudo_ again they regarded as

no innovation[639]. They saw the work of subinfeudation:--Brihtmær held

land of Azor and Azor of Harold; we may well suppose that Harold held it

_of_ the king and that some villeins held part of it of Brihtmær, and

thus we see already a feudal ladder with no less than five rungs[640].

They saw that the thegns owed 'service' to their lords[641]. They saw

the heriot; they sometimes called it a relief[642]. We can not be sure

that this change of names imported any change in the law; when a burgess

of Hereford died the king took a heriot, but if he could not get the

heriot he took the dead man's land[643]. They saw that in certain cases

an heir had to 'seek' his ancestor's lord if he wished to enjoy his

ancestor's land[644]. They saw that many a free man could not give or

sell his land without his lord's consent. They saw that great and

powerful men could not give or sell their land without the king's

consent[645].

[Military tenure.]

They saw something very like military tenure. No matter with which we

have to deal is darker than the constitution of the English army on the

eve of its defeat. We may indeed safely believe that no English king had

ever relinquished the right to call upon all the free men of his realm

to resist an invader. On the other hand, it seems quite clear that, as a

matter of fact, 'the host' was no longer 'the nation in arms.' The

common folk of a shire could hardly be got to fight outside their shire,

and ill-armed troops of peasants were now of little avail. The only army

upon which the king could habitually rely was a small force. The city of

Oxford sent but twenty men or twenty pounds[646]: Leicester sent twelve

men[647]: Warwick sent ten[648]. In Berkshire the law was that, if the

king called out the host, one soldier (_miles_) should go for every five

hides and should receive from each hide four shillings as his stipend

for two months' service. If the man who was summoned made default, he

forfeited all his land to the king; but there were cases in which he

might send one of his men as a substitute, and for a default committed

by his substitute he suffered no forfeiture, but only a fine of fifty

shillings[649]. It is probable that a similar 'five hide rule' obtained

throughout a large part of England. The borough of Wilton was bound to

send twenty shillings or one man 'as for an honour of five hides[650].'

When an army or a fleet was called out, Exeter 'served to the amount of

five hides[651].' All this points to a small force of well armed

soldiers. For example, 'the five hide rule' would be satisfied if

Worcestershire sent a contingent of 240 men. But not only was the army

small; it was a territorial army; it grew out of the soil.

[The army and the land.]

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