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.]