[1064] In many cases the clause of immunity has become very obscure

owing to a copyist's blunder. It is made to run thus: 'Sit

autem terra ista libera omni regi nisi aecclesiastici censi.'

Some mistake between _rei_ and _regi_ may be suspected. What

we want is what we get in some other cases, e.g. K. 651, 652,

viz. 'libera ab omni saecularis rei negotio.' The following

forms are somewhat exceptional; K. 530 and 612, 'butan

ferdfare and walgeworc and brycgeworc _and circanlade'_; K.

623, 666, 'excepta sanctae dei basilicae suppeditatione et

ministratione'; K. 625, 'exceptis sanctae dei aecclesiae

necessitatibus et utilitatibus.'

[1065] Kemble gives it in Cod. Dipl. 1287 (vi. 124) and in an

appendix to vol. i. of his history. Also he speaks of it in

Cod. Dipl. i. xxxv., and there says that it is 'a laboured

justification' by Bp Oswald of his proceedings. To my mind it

is nothing of the kind. Oswald is proud of what he has done

and wishes that a memorial of his acts may be carefully

preserved for the benefit of the church. Of course, if

regarded from our modern point of view, the form of the

document is curious. The bishop seems engaged in an attempt

to bind his lessees by his own unilateral account of the

terms to which they have agreed. But his object is to have of

the contract a record which has been laid before the king and

the witan and which, if we are to use modern terms, will have

all the force of an act of parliament, to say nothing of the

anathema.

[1066] In places its language becomes turbid and well-nigh

untranslatable.

[1067] It may be that the bishop has just obtained from the king a

grant or confirmation of the hundredal jurisdiction over what

is to be Oswaldslaw.

[1068] K. vi. 125: 'hoc est ut omnis equitandi lex ab eis impleatur

quae ad equites pertinet.'

[1069] K. vi. 125: 'et ad totum piramiticum opus aecclesiae calcis

atque ad pontis aedificium ultro inveniantur parati.' The

translation here given is but guesswork; we suppose that

_piramiticus_ means 'of or belonging to fire (πῦρ).'

[1070] Ibid.: 'insuper ad multas alias indigentiae causas quibus

opus est domino antistiti frunisci, sive ad suum servitium

sive ad regale explendum, semper illius archiductoris

dominatui et voluntati qui episcopatui praesidet ... subditi

fiant.' Is _archiductor_ but a fine name for the bishop? We

think not. In the Confessor's day Eadric the Steersman was

'ductor exercitus episcopi ad servitium regis' (Heming, i.

81), and it would seem from this that the tenants were to be

subject to a captain set over them by the bishop. But in the

famous, if spurious, charter for Oswaldslaw (see above, p.

268) Edgar says that on a naval expedition the bishop's men

are not to serve under the ordinary officers 'sed cum suo

archiductore, videlicet episcopo, qui eos defendere et

protegere debet ab omni perturbatione et inquietudine.' This

would settle the question, could we be certain that the words

'videlicet episcopo' were not the gloss of a forger who was

improving an ancient instrument. For our present purpose,

however, it is no very important question whether the

_archiductor_, the commander in chief of these tenants, is

the bishop himself or an officer of his.

[1071] Ibid.: 'praevaricationis delictum secundum quod praesulis ius

est emendet.'

[1072] D. B. 174. Compare the entry on f. 175 b relating to the

church-scot of Pershore.

[1073] Hist. Eng. Law, i. 217. See also D. B. i. 165 b, Hinetune.

[1074] Heming, i. 81: 'Edricus qui fuit, tempore regis Edwardi,

stermannus navis episcopi et ductor exercitus eiusdem

episcopi ad servitium regis.' D. B. i. 173 b: 'Edricus

stirman' held five hides of the bishop.

[1075] Heming, i. 77: 'Et [episcopus] deracionavit socam et sacam de

Hamtona ad suum hundred de Oswaldes lawe, quod ibi debent

placitare et geldum et expeditionem ... persolvere.'

[1076] Maitland, Northumbrian Tenures, Eng. Hist. Rev. v. 625.

[1077] Hist. Eng. Law, i. 288.

[1078] In this respect Oswald's leases seem to have closely

resembled a form of lease, known as _manusfirma_, which

became common in the France of the eleventh century:

Lamprecht, Beiträge zur Geschichte des französischen

Wirthschaftslebens, pp. 59, 60.

[1079] Heming, i. 259: 'Ac primo videndum quae terrae trium heredum

temporibus accommodatae sint, post quorum decessum iuri

monasterii redderentur, quaeve postea iuxta hanc conventionem

redditae, quaeve iniuste sunt retentae, sive ipsorum, qui eas

exigere deberent, negligentia, sive denegatae sint iniquorum

hominum potentia.' See also the story told by Heming on p.

264.

[1080] Lamprecht, op. cit. p. 61, says that it was quite uncommon

for the French landlord to get back his land if once he let

it for three lives. One of the Worcester leases, but one

stigmatized by Kemble (ii. 152), is a lease for three lives

'nisi haeredes illius tempus prolixius a pontifice sedis

illius adipisci poterint.'

[1081] K. 637 (iii. 194): 'si in viduitate manere decreverit, vel

magis nubere voluerit, ei tamen viro qui episcopali dignitati

supradictae aecclesiae sit subiectus.'

[1082] D. B. i. 173: 'Hanc terram tenuit Sirof de episcopo T. R. E.,

quo mortuo dedit episcopus filiam eius cum hac terra cuidam

suo militi, qui et matrem pasceret et episcopo inde

serviret.'

[1083] Hist. Eng. Law, i. 214.

[1084] See above, p. 267.

[1085] D. B. i. 172 b: 'Hae praedictae ccc. hidae fuerunt de ipso

dominio aecclesiae, et si quid de ipsis cuicunque homini

quolibet modo attributum vel praestitum fuisset ad serviendum

inde episcopo, ille qui eam terram praestitam sibi tenebat

nullam omnino consuetudinem sibimet inde retinere poterat

nisi per episcopum, neque terram retinere nisi usque ad

impletum tempus quod ipsi inter se constituerant, et nusquam

cum ea terra se vertere poterat ... Kenewardus tenuit et

deserviebat sicut episcopus volebat ... Ricardus tenuit ad

servitium quod episcopus voluit ... Godricus tenuit serviens

inde episcopo ut poterat deprecari ... Godricus tenuit ad

voluntatem episcopi.'

[1086] D. B. 173 b.

[1087] Oswald's tenants closely resemble the _ministeriales_ of

foreign bishops; see Waitz, Verfassungsgeschichte, v.

283-350. Oswald's _lex equitandi_ may be compared with what

is said (ibid. p. 293) of a bishop of Constance: 'quibus

omnibus hoc ius constituit, ut cum abbate equitarent eique

domi forisque ministrarent, equos suos tam abbati quam

fratribus suis quocumque necesse esset praestarent,

monasterium pro posse suo defensarent.'

[1088] Kemble, Saxons, i. 310 ff.; K. Maurer, Krit. Ueb. i. 104;

Essays in Anglo-Saxon Law, No. ii. (Lodge); Brunner,

Geschichte d. röm. u. germ. Urkunde, 182.

[1089] K. 617 (iii. 164).

[1090] K. 651 (iii. 216).

[1091] K. 679 (iii. 258).

[1092] K. 1287 (vi. 125): 'propter beneficium quod eis praestitum

est.' D. B. i. 173 b. It may cross the reader's mind that the

leases of which Oswald speaks in his letter to Edgar are not

the transactions recorded in the charters that have come down

to us, but other and unwritten leases. But Domesday Book and

the stories told by Heming make against this explanation.

[1093] Æthelr. I. 1, § 14.

[1094] Cnut, II. 13, 77.

[1095] K. 328 (ii. 133): A certain Helmstan is guilty of theft 'and

mon gerehte ðæt yrfe cinge forðon he wes cinges mon and

Ordlaf feng to his londe forðan hit wæs his læn ðæt he on

sæt.'

[1096] K. 330 (ii. 136).

[1097] K. 414 (ii. 273): conveyance by Wulfric with the king's

consent.--K. 491 (ii. 379): conveyance by Wulfstan with

consent of king and witan, who execute the deed.--K. 690-1

(iii. 286-8): conveyances by Æscwig executed by king and

witan.--K. 1124, 1130 (v. 246-54): conveyances confirmed by

king and bishops.--K. 1201 (v. 378): exchange with king's

consent.--K. 1226 (vi. 25): conveyance by a thegn reciting

king's consent. A few documents we must leave unclassified;

K. 499, 591, 693; we do not know how they were executed or

what was their evidential value.

[1098] Brunner, Geschichte d. röm. u. germ. Urkunde, p. 175.

[1099] Hist. Eng. Law, i. 212.

[1100] K. 843 (iv. 201): 'swa full and swa forð swa Ðurstan min

huskarll hit furmest of me heold.'--K. 846 (iv. 205): 'swa

full and swa forð swa Sweyn mi may hit formest of me

held.'--K. 826 (iv. 190): 'swa Ælfwin sy nunne it heold of

ðan minstre.'--K. 827 (iv. 190): 'swa Sihtric eorll of ðan

minstre þeowlic it heold.' If K. 1237 (vi. 44) be genuine

(and Kemble has not condemned it) then already in the middle

of the tenth century 'Goda princeps tenuit terram de rege,'

nor only so, 'tenuit honorem de rege'; but this document is

unacceptable. At best it may be a late Latin translation of

an English original.

§ 5. _The Growth of Seignorial Power._

[Subjection of free men.]

We now return to our original theme, the subjection to seignorial power

of free land-holders and their land, for we now have at our command the

legal machinery, which, when set in motion by economic and social

forces, is capable of effecting that subjection. Let us suppose a

village full of free land-holders. The king makes over to a church all

the rights that he has in that village, reserving only the _trinoda

necessitas_ and perhaps some pleas of the crown. The church now has a

superiority over the village, over the ceorls; it has a right to receive

all that, but for the king's charter, would have gone to him.

[The royal grantee and his land.]

In the first place, it has a right to the _feorm_, the _pastus_ or

_victus_ that the king has hitherto exacted. We should be wrong in

thinking that in the ninth century (whatever may have been the case in

earlier times) this exaction was a small matter. In 883 Æthelred

ealdorman of the Mercians with the consent of King Alfred freed the

lands of Berkeley minster from such parts of the king's _gafol_ or

_feorm_ as had until then been unredeemed. In return for this he

received twelve hides of land and thirty mancuses of gold, and then in

consideration of another sixty mancuses of gold he proceeded to grant a

lease of these twelve hides for three lives[1101]. The king had been

deriving a revenue from this land 'in clear ale, in beer, in honey, in

cattle, in swine and in sheep.' In Domesday Book a 'one night's farm'

is no trifle; it is all that the king gets from large stretches of his

demesne[1102]. Having become entitled to this royal right, the church

would proceed to make some new settlement with the villagers. Perhaps it

would stipulate for a one night's farm for the monks, that is to say,

for a provender-rent capable of supporting the convent for a day. In the

middle of the ninth century a day's farm of the monks of Canterbury

comprised forty sesters of ale, sixty loaves, a wether, two cheeses and

four fowls, besides other things[1103]. When once a village is charged

in favour of a lord with a provender-rent of this kind, the lord's grip

upon the land may easily be tightened. A settlement in terms of bread

and beer is not likely to be stable. Some change in circumstances will

make it inconvenient to all parties and the stronger bargainer will make

the best of the new bargain. The church will be a strong bargainer for

it has an inexhaustible treasure-house upon which to draw. We, however,

concerned with legal ideas, have merely to notice that the law will give

free play to social, economic and religious forces which are likely to

work in the lord's favour.

[Provender rents and the manorial economy.]

But a village charged with a 'provender-rent' may seem far enough

removed from the typical manor of the twelfth and thirteenth centuries.

In the one we see the villagers cultivating each for his own behoof and

supplying the lord at stated seasons with a certain quantity of

victuals; in the other the villagers spend a great portion of their time

in tilling the lord's demesne land. In the latter case the lord himself

appears as an agriculturist: in the former he is no agriculturist, but

merely a receiver of rent. The gulf may seem wide; but it is not

impassable. One part, the last part, of a process which surmounts it is

visible. In the eleventh and twelfth centuries the lords, though they

have much land in demesne, still reckon the whole or part of what they

are to receive from each manor in terms of 'farms'; the king gets a one

night's farm from this manor, the convent of Ramsey gets a fortnight's

farm from that manor[1104]. But we can conceive how the change begins.

The monks are not going to travel, as a king may have travelled, from

village to village feasting at the expense of the folk. They are going

to live in their monastery; they want a regular supply of victuals

brought to them. They must have an overseer in the village, one who will

look to it that the bread and beer are sent off punctually and are good.

In the village over which they already have a superiority they acquire a

manse of their very own, a _mansus indominicatus_ as their foreign

brethren would call it. When once they are thus established in the

village, piety and other-worldliness will do much towards increasing

their demesne and strengthening their position[1105].

[The church and the peasants.]

We have argued above that in the first instance it was not by means of

the petty gifts of private persons that the churches amassed their wide

territories. The starting point is the alienation of a royal

superiority. Still there can be little doubt that the small folk were

just as careful of their souls as were their rulers. They make gifts to

the church. Moreover, the gift is likely to create a dependent tenure.

They want to give, and yet they want to keep, for their land is their

livelihood. They surrender the land to the church: but then they take it

back again as a life-long loan. Thus the church has no great difficulty

about getting demesne. But further, it gets dependent tenants and a

dependent tenure is established. Like enough on the death of the donor

his heirs will be suffered to hold what their ancestor held. Very

possibly the church will be glad to make a compromise, for it may be

doubtful whether these _donationes post obitum_[1106], or these gifts

with reservation of an usufruct, can be defended against one, who, not

having the fear of God before his eyes, will make a determined attack

upon them. Gradually the church becomes more and more interested in the

husbandry of the village. It receives gifts; it makes loans; it

substitutes labour services to be done on its demesne lands for the old

_feorm_ of provender. It is rash to draw inferences from the fragmentary

and obscure laws of Ine; but one of them certainly suggests that, at

least in some district of Wessex, this process was going on rapidly at

the end of the seventh century, so rapidly and so oppressively that the

king had to step in to protect the smaller folk. The man who has taken

a yard of land at a rent is being compelled not only to pay but also to

labour. This, says the king, he need not do unless he is provided with a

house[1107].

[Growth of the manorial system.]

Now we are far from saying that the manorial system of rural economy is

thus invented. From the time of the Teutonic conquest of England onwards

there may have been servile villages, Roman villas with slaves and

_coloni_ cultivating the owner's demesne, which had passed bodily to a

new master. We have no evidence that is capable of disproving or of

proving this. What we think more probable is that in those tracts where

true villages (nucleated villages, as we have before now called

them[1108]) were not formed, the conquerors fitted themselves into an

agrarian scheme drawn for them by the Britons, and that in the small

scattered hamlets which existed in these tracts there was all along a

great deal of slavery[1109]. But, at any rate, the church was a

cosmopolitan institution. Many a prelate of the ninth and tenth

centuries, Bishop Oswald for one, must have known well enough how the

foreign monasteries managed their lands, and, whatever controversies may

rage round questions of remoter history, there can be no doubt that by

this time the rural economy of the church estates in France was in

substance that which we know as manorial. Foreign precedents in this as

in other matters may have done a great work in England[1110]. All that

we are here concerned to show is that there were forces at work which

were capable of transmuting a village full of free landholders into a

manor full of villeins.

[Church-scot and tithe.]

Besides the rights transferred to it by the king, the church would have

other rights at its command which it could employ for the subjection--we

use the word in no bad sense--of the peasantry. By the law of God it

might claim first-fruits and tenths. The payment known as _ciric-sceat_,

church-scot, is a very obscure matter[1111]. Certainly in laws of the

tenth century it seems to be put before us as a general tax or rate, due

from all lands, and not merely from those lands over which a church has

the lordship. On the other hand, both in earlier and in later documents

it seems to have a much less general character. In some of the earlier

it looks like a due, we may even say a rent (_ecclesiasticus census_)

paid to a church out of its own lands, while in the later documents, for

example in Domesday Book, it appears sporadically and looks like a heavy

burden on some lands, a light burden on others. The evidence suggests

that the church had attempted and on the whole had failed, despite the

help of kings and laws, to make this impost general. That in some

districts it was a serious incumbrance we may be sure. On those estates

of the church of Worcester to which we have often referred, every hide

was bound to pay upon St. Martin's day one horse-load (_summa_) of the

best corn that grew upon it. He who did not pay upon the appointed day

incurred the outrageous penalty of paying twelve-fold, and in addition

to this a fine was inflicted[1112]. If the bishop often insisted on the

letter of this severe rule, he must have reduced many a free ceorl to

beggary. It is by no means certain that the duty of paying tithe has not

a somewhat similar history. Though in this case the impost became a

general burden incumbent on all lands, it may have been a duty of

perfect obligation for the subjects of the churches, while as yet for

the mass of other landowners it was but a religious duty or even a

counsel of perfection. At any rate, this subtraction of a tenth of the

gross produce of the earth is no light thing: it is quite capable of

debasing many men from landownership to dependent tenancy.

[Jurisdictional rights of the lord.]

Another potent instrument for the subjection of the free landowners

would be the jurisdictional rights which passed from the king to the

churches and the thegns. At first this transfer would appear as a small

matter. The president of a court of free men is changed:--that is all.

Where the king's reeve sat, the bishop or the bishop's reeve now sits;

fines which went to the royal hoard now go to the minster; but a moot of

free men still administers folk-right to the justiciables of the church.

However, in course of time the change will have important effects. In

the first place, it helps to bind up suit of court with the tenure of

land. The suitor goes to the bishop's court because he holds land of

which the bishop is the lord. If, as will often be the case, he wishes

to escape from the burdensome duty, he will pay an annual sum in lieu

thereof, and here is a new rent. Then again all the affairs of the

territory are now periodically brought under the bishop's eye; he

knows, or his reeves know, all about every one's business and they have

countless opportunities of granting favours and therefore of driving

bargains. Moreover it is by no means unlikely that the lord will now

have something to say about the transfer of land, for it is by no means

unlikely that conveyances will be made in court, and that the rod or

_festuca_ which serves as a symbol of possession will be handed by the

seller to the reeve and by the reeve to the purchaser. We need not

regard the conveyance in court as a relic of a time when a village

community would have had a word to say if any of its members proposed to

assign his share to an outsider. There are many reasons for conveying

land in court. We get witnesses there, and no mere mortal witnesses but

the testimony of a court which does not die. Then, again, there may be

the claims of expectant heirs to be precluded and perhaps they can be

precluded by a decree of the court. The seller's kinsfolk can be ordered

to assert their rights within some limited time or else to hold their

peace for ever after, so that the purchaser will hold the land under the

court's ban[1113]. And thus the rod passes through the hands of the

president. But 'nothing for nothing' is a good medieval rule. The lord

will take a small fine for this _land-cóp_, this sale of land, and soon

it may seem that the purchaser acquires his title to the land rather

from the lord than from the vendor[1114].

[The lord and his man's taxes.]

Yet another turn is given to the screw, if we may so speak, when the

state and the church begin to hold the lord answerable for taxes which

in the last resort should be paid by the tenant[1115]. This, when we

call to mind the huge weight of the danegeld, will appear as a matter of

the utmost importance. Before the end of the tenth century--this is the

picture that we draw for ourselves--large masses of free peasants were

in sore straits and were in many ways subject to their lords. Many of

them were really holding their tenements by a more or less precarious

tenure. They had taken 'loans' from their lord and become bound to pay

rents and work continuously on his inland. Others of them may have had

ancient ancestral titles which could have been traced back to free

settlers and free conquerors; but for centuries past a lord had wielded

rights over their land. The king's _feorm_ had become the lord's

_gafol_, and this, supplemented by church-scot and by tithes, may have

been turned into _gafol_ and week-work. The time came for a new and

heavy tax. This was a crushing burden, and even had the geld been

collected from the small folk it would have had the effect of converting

many of them from landowners into landborrowers[1116]. But a worse fate

befell them. They were so poor that the state could no longer deal with

them; it dealt with their lord; he paid for their land. It follows that

in the eye of the state their land is his land. Less and less will the

national courts and the folk-law recognize their titles; the lord

'defends' this land against all the claims of the state; therefore the

state regards it as his. Hence what seems the primary distinction drawn

by Domesday Book--that between the soke-man and the _villanus_. The

_villanus_ is not rated to the land-tax. Some men are not rated to the

geld because they have but precarious titles; other men have precarious

titles because they are not rated to the geld. A wide and a legally

definable class is formed of men who hold land and who yet are fast

losing the warranty of national law. When once the country is full of

lords with sake and soke, a very small change, a very small exhibition

of indifference on the part of the state, will deprive the peasants of

this warranty and condemn them to hold, not by the law of the land, but

by the custom of their lord's court.

[Depression of the free ceorl.]

To this depth of degradation the great mass of the English peasants in

the southern and western counties--the _villani_, _bordarii_, _cotarii_

of Domesday Book--may perhaps have come before the Norman Conquest.

There may have been no courts which would recognize their titles to

their land, except the courts of their lords. We are by no means certain

that even this was so; but they must fall deeper yet before they will be

the 'serf-villeins' of the thirteenth century.

[The slaves.]

Domesday Book and Beyond: Three Essays in the Early History of England · 第 34 / 56 段