accept if it be put forward in a general form, if it be applied to the
whole or anything like the whole of England. Certainly we are not in a
position to deny that in some cases, a Roman villa having come into the
hands of a Saxon chieftain, he treated the slaves and _coloni_ that he
found upon it in much the same way as that in which they had been
theretofore treated, though even in such a case the change was in all
probability momentous, since large commerce and all that large commerce
implies had perished. But against the hypothesis that this was the
general case the English language and the names of our English villages
are the unanswered protest. It seems incredible that the bulk of the
population should have been of Celtic blood and yet that the Celtic
language should not merely have disappeared, but have stamped few traces
of itself upon the speech of the conquerors.[855] This we regard as an
objection which goes to the root of the whole matter and which throws
upon those who would make the English nation in the main a nation of
Celtic bondmen, the burden of strictly proving their thesis. The German
invaders must have been numerous. The Britons were no cowards. They
contested the soil inch by inch. The struggle was long and arduous. What
then, we must ask, became of the mass of the victors? Surely it is
impossible that they at once settled down as the 'dependent serfs' of
their chieftains. Again, though it is very likely that where we find a
land of scattered steads and of isolated hamlets, there the Germanic
conquerors have spared or have been unable to subdue the Britons or have
adapted their own arrangements to the exterior framework that was
provided by Celtic or Roman agriculture, still, until Meitzen[856] has
been refuted, we are compelled to say that our true villages, the
nucleated villages with large 'open fields,' are not Celtic, are not
Roman, but are very purely and typically German. But this is not all.
Hereafter we shall urge some other objections. The doctrine in question
will give no rational explanation of the state of things that is
revealed to us by the Domesday Survey of the northern and eastern
counties and it will give no rational explanation of seignorial justice.
This being so, we seem bound to suppose that at one time there was a
large class of peasant proprietors, that is, of free men who tilled the
soil that they owned, and to discuss the process which substitutes for
peasant proprietorship the manorial organization.
[Feudalism as a normal stage.]
Though we can not deal at any length with a matter which lies outside
the realm of legal history, we ought at once to explain that we need not
regard this change as a retrogression. There are indeed historians who
have not yet abandoned the habit of speaking of feudalism as though it
were a disease of the body politic. Now the word 'feudalism' is and
always will be an inexact term, and, no doubt, at various times and
places there emerge phenomena which may with great propriety be called
feudal and which come of evil and make for evil. But if we use the term,
and often we do, in a very wide sense, if we describe several centuries
as feudal, then feudalism will appear to us as a natural and even a
necessary stage in our history: that is to say, if we would have the
England of the sixteenth century arise out of the England of the eighth
without passing through a period of feudalism, we must suppose many
immense and fundamental changes in the nature of man and his
surroundings. If we use the term in this wide sense, then (the barbarian
conquests being given us as an unalterable fact) feudalism means
civilization, the separation of employments, the division of labor, the
possibility of national defence, the possibility of art, science,
literature and learned leisure; the cathedral, the scriptorium, the
library, are as truly the work of feudalism as is the baronial castle.
When therefore we speak, as we shall have to speak, of forces which make
for the subjection of the peasantry to seignorial justice and which
substitute the manor with its villeins for the free village, we
shall--so at least it seems to us--be speaking not of abnormal forces,
not of retrogression, not of disease, but in the main of normal and
healthy growth. Far from us indeed is the cheerful optimism which
refuses to see that the process of civilization is often a cruel
process; but the England of the eleventh century is nearer to the
England of the nineteenth than is the England of the seventh--nearer by
just four hundred years.
[Feudalism as progress and as retrogress.]
This leads to a remark which concerns us more deeply. As regards the
legal ideas in which feudalism is expressed a general question may be
raised. If we approach them from the standpoint of modern law, if we
approach them from the standpoint of the classical Roman law, they are
confused ideas. In particular no clear line is drawn between public and
private law. Ownership is _dominium_; but governmental power,
jurisdictional power, these also are _dominium_. Office is property;
taxes are rents; governmental relationships arise _ex contractu_. Then
within the province of private law the ideas are few; these few have
hard work to do; their outlines are blurred. One _dominium_ rises above
another _dominium_, one seisin over another seisin. Efforts after
precision made in comparatively recent times by romanizing lawyers serve
only to show how vague was the subject-matter with which they had to
deal. They would give the lord a _dominium directum_, the vassal a
_dominium utile_; but then, when there has been further subinfeudation,
this vassal will have a _dominium utile_ as regards the lord paramount,
but a _dominium directum_ as regards the sub-vassal. So again, as we
shall see hereafter, the gift of land shades off into the 'loan' of
land, the 'loan' into the gift. The question then occurs whether we are
right in applying to this state of things such a word as 'confusion,' a
word which implies that things that once were distinct have wrongfully
or unfortunately been mixed up with each other, a word which implies
error or retrogression.
[Progress and retrogress in the history of legal ideas.]
Now, no doubt, from one point of view, namely that of universal history,
we do see confusion and retrogression. Ideal possessions which have been
won for mankind by the thought of Roman lawyers are lost for a long
while and must be recovered painfully. Lines that have been traced with
precision are smudged out, and then they must be traced once more. If we
regard western Europe as a whole, this retrogression appears as a slow
change. How slow--that is a much controverted question. There are, for
example, historians who would have us think of the Gaul of Merovingian
times as being in the main governed by Roman ideas and institutions,
which have indeed been sadly debased, but still are the old ideas and
institutions. There are other historians who can discover in this same
Gaul little that is not genuinely German and barbarous. But at any rate,
it must be admitted that somehow or another a retrogression takes
place, that the best legal ideas of the ninth and tenth centuries are
not so good, so modern, as those of the third and fourth. If, however,
we take a narrower view and fix our eyes upon the barbarian hordes which
invade a Roman province, shall we say that their legal thought gradually
goes to the bad, and loses distinctions which it has once apprehended?
To turn to our own case--Shall we say that Englishmen of the eighth
century mark the line that divides public from private law, while
Englishmen of the eleventh century can not perceive it?
[The contact of barbarism and civilization.]
No one perhaps to such a question would boldly say: Yes. And yet, when
it comes to a treatment of particulars, an affirmative answer seems to
be implied in much that has been written even by modern historians. They
begin at the beginning and attribute precise ideas and well-defined law
to the German conquerors of Britain. If they began with the eleventh
century and thence turned to the earlier time, they might come to
another opinion, to the opinion that in the beginning all was very
vague, and that such clearness and precision as legal thought has
attained in the days of the Norman Conquest has been very gradually
attained and is chiefly due to the influence which the old heathen world
working through the Roman church has exercised upon the new. The process
that is started when barbarism is brought into contact with civilization
is not simple. The hitherto naked savage may at once assume some part of
the raiment, perhaps the hat, of the white man. When after a while he
puts these things aside and learns to make for himself clothes suitable
to the climate in which he lives and the pursuits in which he is
engaged, we see in this an advance, not a relapse; and yet he has
abandoned some things that belong to the white man. Even so when our
kings of the eighth century set their hands to documents written in
Latin and bristling with the technical terms of Roman law, to documents
which at first sight seem to express clear enough ideas of ownership and
alienation, we must not at once assume that they have grasped these
ideas. In course of time men will evolve formulas which will aptly fit
their thought, for example, the 'feudal' charter of feoffment with its
_tenendum de me_ and its _reddendo mihi_. Externally it will not be so
Roman or (we may say it) so modern a document as was the land-book of
the eighth century, and yet in truth there has been progress not
retrogress. Words that Roman lawyers would have understood give way
before words which would have been nonsense to them, _feoffamentum_,
_liberatio seisinae_ and the like. This is as it should be. Men are
learning to say what they really mean.
[Our materials.]
And now let us remember that our materials for the legal history of the
long age which lies behind Domesday Book are scanty. A long age it is,
even if we measure it only from the date of Augustin's mission. The
Conqueror stands midway between Æthelbert and Elizabeth. To illustrate
five hundred years of legal history we have only the dooms and the
land-books. The dooms are so much taken up with the work of keeping the
peace and punishing theft that they tell us little of the structure of
society or of the feudalizing process, while as to what they imply it is
but too easy for different men to form different opinions. Some twelve
hundred land-books or charters, genuine and spurious, are our best,
almost our only, evidence, and it must needs be that they will give us
but a partial and one-sided view of intricate and many-sided facts[857].
FOOTNOTES:
[854] Ashley, Introduction to Fustel de Coulanges, Origin of
Property in Land, p. vii.
[855] The gradual disappearance in recent times of the Irish
language is no parallel case, for this is a triumph of the
printing press. Mr Stevenson tells me that the number of
unquestioned cases of a word borrowed from Celtic in very
ancient times is now reduced to less than ten.
[856] Meitzen, Siedelung und Agrarwesen der Germanen, especially ii.
120 ff.
[857] We shall use, and cite by the letter _K._, Kemble's Codex
Diplomaticus Aevi Saxonici. We shall refer by the letters _H.
& S._ to the third volume of the Councils and Ecclesiastical
Documents edited by Haddan and Stubbs, by the letter _T._ to
Thorpe's Diplomatarium, by the letter _B._ to Birch's
Cartularium, by the letter _E._ to Earle's Land Charters.
Reference will also be made to the two collections of
facsimiles, namely, the four volumes which come from the
British Museum and the two which come from the Ordnance
Survey. We are yet a long way off a satisfactory edition of
the land-books. A model has been lately set by Prof. Napier
and Mr Stevenson in their edition of the Crawford Collection
of Early Charters, Oxford, 1895.
§ 1. _Book-land and the Land-book._
[The lands of the churches.]
Now these charters or land-books are, with hardly any exceptions,
ecclesiastical title-deeds. Most of them are deeds whereby lands were
conveyed to the churches; some are deeds whereby lands were conveyed to
men who conveyed them to the churches. Partial, one-sided and in details
untrustworthy though the testimony that they bear may be, there is still
one general question that they ought to answer and we ought to ask.
Domesday Book shows us many of the churches as the lords of wide and
continuous tracts of land. Now about this important element in the
feudal structure the land-books ought to tell us something. They ought
to tell us how the churches acquired their territories; they ought to
tell us what class of men made gifts of land to the churches; they ought
to tell us whether those gifts were of big tracts or of small pieces.
For example, let us remember how Domesday Book shows us that four
minsters, Worcester, Evesham, Pershore and Westminster, were lords of
seven-twelfths of Worcestershire, that the church of Worcester was lord
of one quarter of that shire and lord of the triple hundred of
Oswaldslaw. How did that church become the owner of a quarter of a
county, to say nothing of lands in other shires? We ought to be able to
answer this question in general terms, for among the charters that have
come down to us there is no series which is longer, there is hardly a
long series which is of better repute, than the line of the land-books
which belonged to the church of Worcester. They come to us for the more
part in the form of a cartulary compiled not long after the Conquest by
the monk Heming at the instance of Bishop Wulfstan[858].
[How the churches acquired their lands.]
Now the answer that they give to our question is this:--With but few
exceptions, the donors of these lands were kings or under-kings, kings
or under-kings of the Mercians, kings of the English, and the gifts were
large gifts. Very often the charter comprised a tract of land which in
Domesday Book appears as a whole vill or as several contiguous vills.
Seldom indeed is the subject-matter of the gift described as being a
_villa_ or a _vicus_:--the king merely says that he gives so many manses
or the land of so many _manentes_ at a certain place. Still, if we
compare these charters with Domesday Book, we shall become convinced
that very often the land given was of wide extent. For example, Domesday
Book tells us that the church of Worcester holds Sedgebarrow
(Seggesbarue) where it has four hides for geld, but eight plough teams.
How was this acquired? The monks answer that three centuries ago, in
777, Aldred the under-king of the Hwiccas gave them _viculum qui
nuncupatur aet Segcesbaruue iiii. mansiones_, that land having been
giving to him by Offa king of the Mercians in order that the soul of the
_subregulus_ might have something done for it[859]. In the Conqueror's
reign the Archbishop of Canterbury held a great estate in Middlesex of
which Harrow was the centre, and which contained no less than 100 hides.
Already in 832 the archbishop or his church had 104 hides at
Harrow[860]. Here we will state our belief, its grounds will appear in
another essay, that the 'manses' that the kings throw about by fives and
tens and twenties, are no small holdings, but hides each of which
contains, or is for fiscal purposes deemed to contain, some 120 acres of
arable land together with stretches, often wide stretches, of wood,
meadow and waste, the extent of which varies from case to case. From the
seventh century onwards the kings are giving large territories to the
churches. One instance is beyond suspicion, for Bede attests it. In 686
or thereabouts Æthelwealh king of the South Saxons gave to Bishop
Wilfrid the land of eighty-seven families in the promontory of Selsey,
and among its inhabitants were two hundred and fifty male and female
slaves[861]. This gift comprised a spacious tract of country; it
comprised what then were, or what afterwards became, the sites of many
villages[862]. But to whichever of our oldest churches we turn, the
story that it proclaims in its title-deeds is always the same:--We
obtained our lands by means of royal grants; we obtained them not in
little pieces, here a few acres and there a few, but in great pieces.
Canterbury and Winchester echo the tale that is told by Worcester.
Another example may be given. It is one that has been carefully examined
of late. In 739 King Æthelheard of Wessex gave to Forthhere bishop of
Sherborne twenty _cassati_ at the place called 'Cridie.' Thereby he
disposed of what now are 'the parishes of Crediton, Newton St. Cyres,
Upton Pyne, Brampford Speke, Hittesleigh, Drewsteignton, Colebrooke,
Morchard Bishop, Sandford, Kennerleigh and the modern parish of
Sherwood, part of Cheriton Bishop, and possibly the whole of
Clannaborough.' He disposed of the whole and more than the whole of the
modern 'hundred' of Crediton[863]. Then, to choose one last instance, it
is said that already in 679 Osric of the Hwiccas gave to an abbess
_centum manentes qui adiacent civitati quae vocatur Hát Bathu_[864]. It
is not unlikely that this means that a king newly converted to
Christianity disposed by one deed of many square leagues of land,
namely, of the hundred of Bath[865]. The kingdom of the Hwiccas was not
boundless. If Osric executed a few more charters of this kind he would
soon have 'booked' it all.
[The earliest books.]
Let us then examine with some care the charters that come to us from the
earliest period, a period which shall begin with the year 600 and end
with the year 750. From this time we have some forty charters
sufficiently genuine for our present purpose. With hardly an exception
the grantor is a king or an under-king, while the grantee is a dead
saint, a church, a bishop, an abbot, or a body of monks. If the grantee
is a layman, the gift is made to him in order that he may found a
minster. If this purpose is not expressed, it is to be understood. Thus
in 674 or thereabouts Wulfhere king of the Mercians gives five manses to
his kinsman Berhtferth as a perpetual inheritance. Berhtferth is to have
full power to give them to whom he pleases, and we are not told that he
proposes to devote them to pious uses. Nevertheless, the king makes the
gift 'for the love of Almighty God and of his faithful servant St.
Peter[866].' In other cases the lay donee is to hold the land 'by church
right' or 'by minster right[867].' Indeed there seems to be no single
deed of this period which does not purport upon its face to be in some
sort an ecclesiastical act, an act done for the good of the
church[868].
[Exotic character of the book.]
These charters are documents of ecclesiastical origin; they are also
documents of foreign origin. The bishops and abbots have brought or have
imported models from abroad. The 'books' that they induce the kings to
sign are full of technical phrases which already have an ancient
history. By way of illustration we will notice one point at which there
is an instructive resemblance and an instructive contrast. On the
Continent a grantor of lands ends his conveyance with a 'penal
stipulation.' If an heir of his controverts the deed, he is to pay a
certain sum, and none the less the conveyance is to remain in full
force. In England we can not thus stipulate for a pecuniary penalty; the
land-book is still so purely an ecclesiastical affair that the
punishment of its violator must be left to the church and to God. So
instead of stipulating that he shall pay money, we stipulate that he
shall be excommunicated and, if impenitent, damned, but we do not forget
to add that none the less the conveyance shall remain as valid and
effectual as ever. 'If anyone,' says Eadric of Kent, 'shall attempt to
go against this gift, let him be separated from all Christianity and the
body and blood of Jesus Christ, _manentem hanc donationis chartulam[869]
in sua nihilominus firmitate_.' Such words may look somewhat out of
place in their new surroundings; but they are part of a venerable
formula.[870]
[The book purports to confer ownership.]
But what is the model to which in the last resort these documents go
back? A conveyance by a Roman landowner. He has in the land full and
absolute _dominium_ and is going to transfer this to another. Let us
observe that the recorded motive which prompts a king to set his cross,
or rather Christ's cross, to a land-book is a purely personal motive. He
wishes to save his soul, he desires pardon for his crimes[871]. Of the
welfare of his realm he says nothing; but his soul must be saved.
Sometimes he will give land to an under-king or to an ealdorman, for
they also have souls and may desire salvation[872]. He is acting as a
private landowner might act. Then he uses terms and phrases which belong
to the realm of pure private law. He asserts in the most energetic of
all the words that the law of the lower empire could provide that he
is a landowner and that he is going to transfer landownership. The
land in question is _tellus mea_[873] or it is _terra iuris mei_[874].
Then it is the very land itself that he gives, the land of so many
manses, 'with all the appurtenances, fields, pastures, woods, marshes.'
It is no mere right over the land that he gives, but the very soil
itself. Next let us observe the terms in which the act of conveyance is
stated:--_perpetualiter trado et de meo iure in tuo transscribo terram
... ut tam tu quam posteri tui teneatis, possideatis et quaecunque
volueris de eadem terra facere liberam habeatis potestatem_[875]. The
Latin language of the time had no terms more potent or precise than
these. Or again: _aliquantulam agri partem ... Waldhario episcopo in
dominio donare decrevimus_[876]. Or again: _aeternaliter et
perseverabiliter possideat abendi vel dandi cuicumque eligere
voluerit_[877]. But it is needless to multiply examples.
[Does the book really confer ownership?]
No doubt then, if we bring to the interpretation of these instruments
the ideas of an earlier or of a later time, the ideas of ancient Rome or
of modern Europe, we see the king as a landowner conferring on the
churches landownership pure and simple. The fact on which our
constitutional historians have laid stress, namely, that sometimes (for
we must not overstate the case) the king says that the bishops and his
great men are consenting to his deed, important though it may be in
other contexts, is of little moment here. The king is put before us as
the owner of the land conveyed; it is, he says, _terra mea, terra iuris
mei_. The rule, if rule it be, that he must not give away his land
without the consent of bishops and nobles in no way denies his
ownership. However, we are at the moment more concerned with the fact,
or seeming fact, that what he gives to the churches is ownership and
nothing less.
[The book really conveys a superiority.]
But if we loyally accept this seeming fact and think it over, to what
conclusions shall we not be brought, when we remember how wide were the
lands which the churches acquired from the kings, when we think once
more how by virtue of royal gifts the church of Worcester acquired a
quarter of a county? When these lands were given to the church were they
waste lands? It is plain that this was not the common case. Already
there were manses, there were arable fields, there were meadows, there
were tillers of the soil. One of two conclusions seems to follow. Either
the king really did own these large districts, and the tillers of the
soil were merely his slaves or _coloni_, who were conveyed along with
the soil, or else the clear and emphatic language of the charters sadly
needs explanation. Now if we hold by the letter of the charters, if we
say that the king really does confer landownership upon the churches,
there will be small room left for any landowners in England save the
kings, the churches and perhaps a few great nobles. This is a theory
which for many reasons we can not adopt; no one can adopt it who is not
prepared to believe that Britain was conquered by a handful of
chieftains without followers. The only alternative course seems that of
saying that many of the land-books even of the earliest period, despite
their language, convey not the ownership of land, but (the term must be
allowed us) a 'superiority' over land and over free men.
[A modern analogy.]