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.]