that we find in our English fields? Who laid out those fields? The
obvious answer is that they were laid out by men who would sacrifice
economy and efficiency at the shrine of equality. Each manse is to have
the same number of strips; the strips of one manse must be neither
better nor worse than those of its neighbour and therefore must be
scattered abroad over the whole territory of the village. That this
system was not invented by men who owned large continuous tracts is
plain. No such owner would for one moment dream of cutting up his land
in this ridiculous fashion, and of reserving for his own manse, not a
ring-fenced demesne, but strips lying here and there, 'hide-meal and
acre-meal' among the strips of his serfs. That is not the theory. No one
supposes that a Roman landowner whose hands were free allowed the soil
of his villa to be parcelled out in accordance with this wasteful,
cumbrous, barbarous plan. So his hands must not be free; the soil of
which he becomes the owner must already be plotted out in strips, and
these strips must be so tightly bound up into manses, that he scruples
to overturn an existing arrangement, and contents himself with
appropriating a few of the manses for his own use and compelling the
occupants of the others to labour for him and pay him rents. In this
there is nothing impossible; but we have only deferred, not solved the
problem. Who laid out our English fields and tied the strips into
manses? That this work was done by the Britons before they were brought
under the Roman yoke does not seem very probable. Celtic rural economy,
whenever it has had a chance of unfettered development, has made for
results far other than those that are recorded by the larger half of the
map of England. If throughout England the Romans found so tough a system
of intermixed manses that, despite all its absurdities, they could not
but spare it, then the Britons who dwelt in the land that was to be
English were many centuries in advance of the Britons who dwelt in the
land that was to be Welsh. To eke out this hypothesis another must be
introduced. The Teutonic invaders of Britain must be brought from some
manorialized province. So, after all, the model of the English field may
have been 'made in Germany.' Somehow or another it was made in South
Germany by semi-servile people, whose semi-servility was such a
half-and-half affair that they could not be prevented from sacrificing
every interest of their lords at the shrine of equality[1163].
[The lords and the strips.]
We are far from saying that wherever there is strip-holding, there
liberty and equality have once reigned[1164]. It is very possible that
where a barbarian chieftain obtained a ring-fenced allotment of
conquered soil, he sometimes divided it into scattered strips which he
parcelled out among his unfree dependants. But if he did this, he did it
because his only idea of agriculture was derived from a village formed
by men who were free and equal. The maintenance of a system of
intermixed strip-holding may be due to seignorial power, and a great
deal of the rigidity of the agrarian arrangements that we see in the
England of the thirteenth century may be due to the same cause.
Seignorial power was not, at least in origin, absolute ownership. It had
to make the best it could of an existing system. For the lord's purposes
that system was at its best when it was rigid and no tenement was
partible. But assuredly this plan was not originally invented by great
proprietors who were seeking to get the most they could out of their
land, their slaves and their capital.
[The ceorl and the slave.]
That we have not been denying the existence of slavery will be plain.
Indeed we may strongly suspect that the men who parcelled out our fields
were for the more part slave-owners, though slave-owners in a very small
way. To say nothing of Welshmen, there was quite enough inter-tribal
warfare to supply the ceorl with a captive. But it was not for the sake
of slaves or serfs or 'semi-servile' folk that the system of intermixed
strips was introduced.
[The condition of the Danelaw.]
Lastly, the theory which would derive the English manor from the Roman
_villa_ must face the grave problem presented to it by the account which
Domesday Book, when speaking of the Confessor's day, gives of the
eastern and northern counties, of a large quarter of all England, and of
just that part of England which was populous. We see swarms of men who
are free men but who are subject, they and their land, to various modes
and degrees of seignorial power. The modes are many, the degrees are
gentle. Personal, tenurial, justiciary threads are woven into a web that
bewilders us. Here we see the work of commendation, there the work of
the land-loan, and there again what comes of grants of sake and soke. We
see the formation of manors taking place under our eyes, and as yet the
process is by no means perfect. In village after village there is
nothing that our economic historians would consent to call a manor. Now,
no doubt, the difference between the east and the west is, at least in
part, due to Danish invasions and Danish settlements. But how shall we
picture to ourselves the action of the Danes? Is it to be supposed that
they found the Anglo-Roman manor-villa a prevalent and prosperous
institution, that they destroyed it and put something else in its place,
put in its place the village of free peasants who could 'go with their
land' to what lord they pleased? If so, then we have to face the
question why these heathen Danes acted in a manner so different from
that in which their predecessors, the heathen Angles and Saxons, had
acted. Surely one part of the explanation is that the inswarming
barbarians checked the manorializing process that was steadily at work
in Wessex and Mercia. We do not say that this is the whole explanation.
We have seen how free were many of the Cambridgeshire villages and have
little reason to believe that they had been settled by Danes[1165]. The
west country is the country to which we shall naturally look for the
most abundant traces of the _Wealh theow_. There it is that we find
numerous _servi_, and there that we find rather _trevs_ than villages.
But also we have hardly a single land-book of early date which deals
with any part of the territory that became the Danelaw. Many a book the
Danes may have burnt when they sacked the monasteries. They sacked the
monasteries, burnt the books and freed the land. But still we may doubt
whether the practice of booking lands to the churches had gone far in
East Anglia and the adjacent shires when they were once more overwhelmed
by barbarism. No doubt in course of time the churches of the east became
rich: Ely and St Edmunds, Peterborough and Ramsey, Croyland and Thorney.
But, even when supplemented by legend and forgery, their titles to wide
territories can seldom be compared for antiquity to the titles that
might have been pleaded by the churches of Kent and Wessex and the
Severn Valley. Richly endowed churches mean a subjected peasantry. And
thus we may say of the Danes that if in a certain sense they freed the
districts which they conquered, they in the same sense enslaved the rest
of England. Year by year Wessex and Mercia had to strain every nerve in
order to repel the pagans, to fit out fleets, build burgs and keep
armies always in the field. The peasant must in the end bear the cost of
this exhausting struggle. Meanwhile in the north and the east the
process that makes manors has been interrupted; it must be begun once
more. It was accomplished by men some of whom had Scandinavian blood in
their veins, but who were not heathens, not barbarians: it was
accomplished by Normans steeped in Frankish feudalism.
FOOTNOTES:
[1101] K. 313 (ii. 110); T. 129; B. ii. 172.
[1102] In many cases the one night's farm is reckoned at £100 or
thereabouts; Round, Feudal England, 112.
[1103] K. 477 (ii. 354); T. 509.
[1104] Vinogradoff, Villainage, 301.
[1105] Even T. R. W. and in a thoroughly manorial county such as
Hampshire we may find a village in which the lord has no
demesne. See e.g. D. B. i. 41 b, Alwarestoch.
[1106] Hist. Eng. Law, ii. 315
[1107] Ine, 67. See Schmid's note.
[1108] See above, p. 15.
[1109] See Meitzen, Siedelung und Agrarwesen der Germanen, ii. 97
ff.
[1110] Stubbs, Const. Hist. i. 223.
[1111] The subject is treated at length by Kemble, Saxons, ii. 490
and App. D, and Schmid, p. 545.
[1112] D. B. i. 174. Compare Ine, 4; Æthelr. VIII. 11; Cnut, I. 10.
[1113] Hist. Eng. Law, ii. 95.
[1114] Æthelred, III. 3; Schmid, App. II. 67 and Schmid, Glossar, s.
v. _land-ceáp_.
[1115] See above, pp. 55, 122, 125.
[1116] See above, p. 6. In a charter of Æthelred, K. 689 (iii. 284),
Abp. Sigeric, the reputed inventor of the danegeld, is
represented as pledging a village of thirty manses in order
that he may pay the money demanded by the pirates. He thus
raises 90 pounds of purest silver and 200 mancuses of purest
gold. If the mancus was the eighth of a pound (Schmid, p.
595) we have 90 pounds of silver and 25 of gold, or in all
perhaps £390. The whole danegeld of Kent under Henry II. was
less than £106. For other transactions of a similar kind, see
Crawford Charters, 76.
[1117] See above, p. 27.
[1118] Hist. Eng. Law, i. p. 416.
[1119] K. 1327 (iv. 190): 'swa full and swa forð swa Sihtric eorll
of ðan ministre þeowlic it heold.'
[1120] Cnut, II. 20.
[1121] Hist. Eng. Law, ii. p. 458.
[1122] Chron. Petrob. 166: 'Sunt etiam in eadem scira 15 undersetes
qui nullum servicium faciunt nisi husbondis in quorum terra
sedent.'
[1123] See above, p. 136.
[1124] Schmid, App. III. p. 370; Seebohm, English Village Community,
p. 129. See also Liebermann's article in Anglia, ix. 251,
where the _Gerefa_, which seems to be a second part of this
document, is printed.
[1125] We here adopt Schmid's conjecture: 'and scorp to friðscipe
[_corr._ fyrdscipe].'
[1126] Ibid.: 'and hlaford feormian,' and supply a feorm (firma) for
his lord.
[1127] The text says that he must lie at his lord's fold; but
probably it refers to the _soca faldae_. See above, p. 76.
[1128] Of the serfs we hear (c. 8, 9) what they are to receive, but
not what they ought to do; their services are unlimited.
[1129] Schmid, p. 596: Maurer, K. U. ii. 405.
[1130] See above, p. 305, also Maurer, K. U. ii. 406.
[1131] He is to 'work' for his lord; but then see how Oswald speaks
of his knights and radmen: 'semper illius ... dominatui et
voluntati ... cum omni humilitate et subiectione subditi
fiant secundum ipsius voluntatem.' Cf. D. B. i. 172 b:
'deserviebat sicut episcopus volebat' ... 'tenuit ad
servitium quod episcopus voluit.' The translator who turned
him into a villanus was capable of turning the king's
_geneat_ of Ine's law into a _colonus_, a _colonus_ with a
wergild of 1200 shillings! See Schmid, p. 29.
[1132] See above, p. 36.
[1133] See e.g. cap. i., where it is pretty clear that he can not
translate _scorp_. So in the Latin version of Edgar II. c. 1
he renders _geneatland_ by _terra villanorum_. But about such
a matter as this the testimony of the Quadripartitus is of no
value. See Liebermann, Gerefa, Anglia, ix. 258.
[1134] Mr Seebohm, p. 130, commits what seems to me the mistake of
saying that the cottiers and boors are 'various classes of
geneats.' To my thinking a great contrast is drawn between
the _geneat_ and the _gebúr_ both in this document and in the
account of Tidenham. So in Edgar II. c. 1 the contrast is
between land which the great man has in hand and land which
he has let to his 'fellows,' his _equites_ and _ministri_.
See Konrad Maurer, K. U. ii. 405-6. Such words as _gebúr_ and
_burus_ are obviously very loose words and it is likely that
many a man who answered to the description of the _gebúr_
given by the Rectitudines appears in Domesday Book, which in
general cares only about fiscal distinctions, as a _villanus_
or _bordarius_. But we have clear proof that the surveyors
saw a class of _buri_ ( = _coliberti_) who were distinct from
the ordinary _villani_. See above, p. 36.
[1135] K. 452 (ii. 327). See also Two Chartularies of Bath Abbey
(Somerset Record Society), pp. 5, 18, 19.
[1136] K. iii. 449; E. 375: Seebohm, 148. Both documents come from
MS. C.C.C. Camb. cxi. The conveyance is on f. 57, the
statement of services on f. 73. The statement of services
immediately precedes the lease of Tidenham to Stigand, K. 822
(iv. 171). Thus we have really better reason for referring
that statement to the very eve of the Norman Conquest than to
956. See also Kemble, Saxons, i. 321, and Maurer, K. U. ii.
406.
[1137] K. 1077 (v. 146; iv. 306); T. 143; Kemble, Saxons, i. 319;
Seebohm, 160. But the form of the instrument as given in the
Codex Wintoniensis is best seen in B. ii. 240. We have quoted
above the estimate of this Codex formed by Mr Haddan and Dr
Stubbs (Councils, iii. 638).
[1138] B. ii. 238.
[1139] B. ii. 239.
[1140] See above, p. 129.
[1141] Ine, 67.
[1142] Ine, 39. The man who leaves his lord (not his lord's land,
but his lord) without license, or steals himself away into
another shire, is to pay 60 shillings (no trivial sum) to his
lord.
[1143] Surely the law, Hloth. and Ead. c. 15, which begins 'If a man
receive a guest three nights in his own home (an his agenum
hame)' is not directed only against the lords of manors. See
Meitzen, Siedelung und Agrarwesen, ii. 123.
[1144] Ashley, Translation of Fustel de Coulanges, Origin of
Property, p. xvi.
[1145] K. 220 (i. 280): 'ad regalem villam Lundoniae perveniens.'
[1146] Fustel de Coulanges, L'Alleu, ch. vi. There is much to be
said on the other side; see Flach, Les origines de l'ancienne
France, ii. pp. 47-62. As to the _villa_ of the Lex Salica,
see Blumenstok, Entstehung des deutschen
Immobiliareigenthums, i. 219 ff.
[1147] The suggestion that _villa_ appears in some of our
place-names as the termination _-well_ runs counter, so Mr
Stevenson tells me, to rules of phonology.
[1148] See Bosworth's Dictionary; Kemble, Cod. Dipl. iii. p. xli. In
the translation of St. Mark viii. 23, 26 both _wíc_ and _tun_
are used as equivalents for _vicus_:--'eduxit eum extra vicum
... et si in vicum introieris' = 'and lædde hine butan þa wic
... and ðeah þu on tun ga.' Even in France the word _vicus_
becomes part of numerous place-names: see Flach, op. cit. i.
p. 53.
[1149] There is something curious about the use made of _wick_. It
is often used to distinguish a hamlet or small cluster of
houses separate from the main village. Thus in the parish of
_X_ we shall find _X-wick_. The _berewicks_ and _herdwicks_
of D. B. (see above, p. 114) seem to be small clusters. On
the other hand London is a _wíc_; Hloth. and Ead. 16.
[1150] K. 1041 (v. 88): 'in Dorobernia etiam civitate unam villam
donabo ad quam pertinet quinque iugera terrae et duo prata.'
K. 276 (ii. 57): 'dabo unam villam, quod nos Saxonice an haga
dicimus.' K. 259 (ii. 26): 'villam unam ab orientale parte
muri Doroverniae civitatis.'
[1151] K. 829 (iv. 191).
[1152] K. 845 (iv. 204). In a passage which has been interpolated
into one copy of the A.-S. Chronicle (Thorpe, p. 220) we read
'And se biscop ... bohte þa feala cotlif æt se king.'
[1153] Crawford Charters, pp. 22, 125; K. 1293 (vi. 138).
[1154] Thus K. 109 (i. 133): 'villam unam ... quae iam ad Quenegatum
urbis Dorovernensis in foro posita est.' It is not denied
that in some quite early charters a king gives a _villa_ or
_villula_, e.g. K. 209 (i. 264): 'Heallingan cum villulis
suis'; see also K. 140 (i. 169), in which _villula_ and
_viculus_ are used as synonyms.
[1155] A good example is that abominable forgery K. 984 (v. 2),
Wulfhere's charter for Peterborough.
[1156] For example, K. 117-8-20 (i. 144-7).
[1157] One of the earliest instances of what looks like manorial
organization will be found in K. 201 (i. 253); B. i. 485. In
814 Cenwulf gives to the Abp. of Canterbury a plough-land:
'et hoc aratrum cum omnibus utensilibus bonis ad mansionem in
grafon æa [Graveney] æternaliter concessum est.'
[1158] A.D. 880, K. 311 (ii. 107): 'Insuper etiam huic donationi in
augmentum sex homines, qui prius pertinebant ad villam regiam
in Beonsinctune, cum omni prole stirpeque eorum ad eandem
conscripsimus aecclesiam.' A.D. 889, K. 315 (ii. 117): 'cum
hominibus ad illam pertinentibus.' A.D. 962, K. 1239 (vi.
49): 'vineam ... cum vinitoribus.' In late documents penned
in English it is common to convey land 'with meat and with
man.' Instances are collected in Crawford Charters, 127.
[1159] Therefore we sometimes meet with the form _cassata_, while
_manens_ is treated as a feminine word; K. i. 301; B. i. 573:
'has x. manentes ... dividendas dimisit.' So Asser (ed.
Camden, p. 4) says that Æthelwulf ordered that one poor man
should be fed and clothed 'per omnem hereditariam terram suam
semper in x. manentibus.'
[1160] K. 1033 (v. 73): 'aliquam portionem terrae ... in modum
videlicet ut autumo v. cassatorum.' K. 1308 (v. 83): 'aliquam
portionem terrae ... in modum videlicet ut autumo xx.
manentium.' K. 565 (iii. 64): 'quoddam ruris clima sub
aestimatione decem cassatorum.' K. 573 (iii. 87): 'ruris
quandam particulam, denis ab accolis aestimatam
mansiunculis.' K. 602 (iii. 146): 'quoddam rus x. videlicet
mansarum quantitate taxatum.'
[1161] Let us open the Cod. Dipl. at the beginning of Edmund's reign
(ii. 218). The number of manses given in twenty-five
consecutive charters is as follows: 10, 20, 10, 10, 9, 10,
15, 7, 8, 20, 10, 3, 5, 20, 30, 3, 6, 5, 3, 7, 20, 20, 5, 8,
5.
[1162] It seems almost necessary to protest that to-day our
landowners are not semi-servile occupants of the soil, though
they pay land taxes, house taxes, income taxes and rates
innumerable.
[1163] I can not but think that Fustel de Coulanges knew his
business thoroughly well, and that if the German is to be
taught his proper and insignificant place, the less that is
said of intermixed 'strip-holding' the better, though to
ignore it utterly was, even in France, a bold course.
[1164] Meitzen, op. cit. i. 431-41.
[1165] See above, p. 139.
§ 6. _The Village Community._
[The village community.]
We have argued for an England in which there were many free villages. It
remains for us to say a word of the doctrines which would fill England
with free landowning village communities. Here we enter a misty region
where arguments suggested by what are thought to be 'survivals' and
inferences drawn from other climes or other ages take the place of
documents. We are among guesses and little has as yet been proved.
[The popular theory.]
A popular theory teaches us that land belonged to communities before it
belonged to individuals. This theory has the great merit of being vague
and elastic; but, as it seems to think itself precise, and probably owes
some of its popularity to its pretence of precision, we feel it our duty
to point out to it its real merit, its vague elasticity.
[Co-ownership and ownership by corporations.]
It apparently attributes the ownership of land to communities. It
contrasts communities with individuals. In so doing it seems to hint,
and yet to be afraid of saying, that land was owned by corporations
before it was owned by men. The hesitation we can understand. No one who
has paid any attention to the history of law is likely to maintain with
a grave face that the ownership of land was attributed to fictitious
persons before it was attributed to men. But if we abandon ownership by
corporations and place in its stead co-ownership, then we seem to be
making an unfortunate use of words if we say that land belonged to
communities before it belonged to individuals. Co-ownership is ownership
by individuals. When at the present day an English landowner dies and
his land descends to his ten daughters, it is owned by individuals, by
ten individuals. If each of these ten ladies died intestate leaving ten
daughters, the land would still be owned by individuals, by a hundred
individuals.
['Communities' as owners.]
The distinction that modern law draws between the landowning corporation
and the group of co-owners is as sharp as any distinction can be. It
will be daily brought home to any one who takes an active share in the
management of the affairs of a corporation, for example, a small college
which has a master, six fellows and eight scholars. A conveyance of land
to the college and a conveyance of land to these fifteen men would have
utterly different effects. A corporation may be deep in debt while none
of its members owes a farthing. Now we may suspect, and not without
warrant, that in a remote past these two very different notions, namely
that of land owned by a corporation and that of land owned by a group of
co-owners were intimately blent in some much vaguer notion that was
neither exactly the one nor exactly the other. We may suspect that could
we examine the conduct of certain men who lived long ago we should be
sorely puzzled to say whether they were behaving as the co-owners of a
tract of land or as the members of a corporation which was its owner.
But to fashion for ourselves any clear and stable notion of a _tertium
quid_ that is neither corporate ownership nor co-ownership, but partly
the one and partly the other, seems impossible[1166]. Therefore if, in
accordance with the popular theory, we attribute the ownership of lands
to 'communities,' we ought to add that we do not attribute it to
corporations and that we are fully aware that co-ownership can not be
sharply contrasted with ownership by individuals.
[Possession and ownership.]
Also since we are apt to fall into the trick of talking about possession
when we mean ownership or proprietary right, we need not perhaps ask
pardon for the remark that land owned by a group of three joint tenants
may be possessed in many different ways. The three may be jointly
possessing the whole; each may be severally possessing a physically
divided third; the whole may be possessed by one of them or by some
fourth person; the possession may be rightful or wrongful.
But there is a graver question that must be raised. When we say that
land belonged to communities before it belonged to individuals, are we
really speaking of ownership or of something else?
[Ownership and governmental power.]
At the present day no two legal ideas seem more distinct from each other
than that of governmental power and that of proprietary right. The
'sovereign' of Great Britain (be the sovereignty where it may) is not
the owner of Great Britain, and if we still say that all land is 'held
of' the king, we know that the abolition of this antique dogma, this
_caput mortuum_, might be easily accomplished without any perceptible
revolution in the practical rules of English law. A landowner in the
United States does not 'hold of' the State or the people or the
government of the State. The 'eminent domain' of the State is neither
ownership nor any mode of ownership. Further, we conceive that the
sovereign person or sovereign body can, without claiming any ownership
in the soil, place many restrictions on the use that an owner may make
of his land. A law may prohibit owners from building on certain lands:
those lands are still their lands. Again, the supposed law may be not a
negative but a positive rule; it may require that the owners of certain
lands shall build upon them, or shall till them, or shall keep them as
pasture[1167]: still neither state nor sovereign will be owner of those
lands or have any proprietary interest in them. Our law may subject
certain lands to a land-tax to be paid to the state in money, or to a
tithe to be paid to the church in kind, but the state will not and the
church will not be part-owner of those lands. Our state may habitually
expropriate owners, may take their lands from them because they are
felons or because their lands are wanted for the construction of
railways. We may conceive it expropriating owners who have done no wrong
and yet are to have no compensation; but until the expropriation takes
place the state does not own the land. As with land, so with chattels.
The owner of a cart may find that it is impressed for the purpose of
military transport[1168] and yet the cart is his and not the state's.
[Ownership and the powers of subordinate governors.]