Chapter XII: ARRINGTON. A vill of 4 hides (5)

[728] An interesting example is this. In 779 Offa conveys to a thegn
land at Sulmonnesburg. The boundaries mentioned in the charter
are those of the present parish of Bourton-on-the-Water.
'Sulmonnesburg ... is the ancient camp close to Bourton which
gave its name to the Domesday Hundred of Salmanesberie, and at
a gap in the rampart of which a Court Leet was held till
recently.' See C. S. Taylor, Pre-Domesday Hide of
Gloucestershire, Trans. Bristol and Gloucestershire Archæol.
Soc. vol. xviii. pt. 2. As regards the names of hills and of
villages named from hills there may occasionally be some
difficulty in marking off those which go back to _beorh_
(_berry_, _berrow_, _barrow_) from those which go back to
_burh_ (_burgh_, _borough_, _bury_). Mr Stevenson tells me
that in the West of England the termination _-borough_
sometimes represents _-beorh_.

[729] Alfred, 40; Ine, 45.

[730] Aethelr. IV. 4. The Quadripartitus is our only authority for
these _Instituta_; but Dr Liebermann (Quadrip. p. 138) holds
that the translator had in front of him a document written
before the Conquest. Schmid would read _borh-bryce_; see p.
541; but this emendation seems needless. Has not the sum been
Normanized? The king's _burh-bryce_ used to be 120 (i.e. in
English 'a hundred') shillings, and a hundred _Norman_
shillings make £5. So according to the Berkshire custom (D. B.
i. 56 b) he who by night breaks a _civitas_ pays 100 shillings
to the king and not (it is noted) to the sheriff.

[731] D. B. i. 2: 'Concordatum est de rectis callibus quae habent
per civitatem introitum et exitum, quicunque in illis
forisfecerit, regi emendabit.' See the important document
contained in a St Augustin's Cartulary and printed in Larking,
Domesday of Kent, Appendix, 35: 'Et omnes vie civitatis que
habent duas portas, hoc est introitum et exitum, ille sunt de
consuetudine Regis.'

[732] Schmid, App. XII; Leg. Henr. c. 16.

[733] Fleta, p. 66; see also 13 Ric. II. stat. 1. cap. 3.

[734] Edmund, II. 2.

[735] See also Schmid, App. IV. (Be griðe and be munde), § 15: 'If
any man fights or steals in the king's _burh_ or the
neighbourhood (the 'verge'), he forfeits his life, if the king
will not concede that he be redeemed by a _wergild_.'

[736] Æthelstan, II. 20.

[737] K. 1334 (vi. p. 195): a contract made at Exeter before Earl
Godwin and all the shire.

[738] Edgar, III. 5; Cnut, II. 18.

[739] Mention is made of the walls of Rochester and Canterbury in
various charters from the middle of cent. viii onwards: K.
vol. i. pp. 138, 183, 274; vol. ii. pp. 1, 26, 36, 57, 86;
vol. v. p. 68.

[740] Green, Conquest of England, 189-207.

[741] For instance, K. iii. pp. 5, 50.

[742] K. 1154 (v. 302): 'adiacent etiam agri quamplurimi circa
castellum quod Welingaford vocitatur.'--K. 152 (i. 183):
'castelli quod nominatur Hrofescester.'--K. 276 (ii. 57):
'castelli Hrobi.'

[743] A beautiful example is given by Staffordshire and
Warwickshire. Each has its borough in its centre, while
Tamworth on the border is partly in the one shire, partly in
the other. See Pipe Roll, 31 Hen. I. 75, 76, 107, 108. As to
these Mercian shires, see Stubbs, Const. Hist., i. 123; Green,
Conquest of England, 237: 'Hertfordshire, Buckinghamshire and
Bedfordshire are other instances of purely military creation,
districts assigned to the fortresses which Eadward raised at
these points.'

[744] See our index under _Burghal Hidage_. Mr W. H. Stevenson's
valuable aid in the identification of these burgs is
gratefully acknowledged.

[745] D. B. i. 154.

[746] D. B. i. 262 b.

[747] It will be understood that we are not contending for an exact
correspondence between civil and military geography. Oxford
and Wallingford are border towns. Berkshire men help to
maintain Oxford, and Oxfordshire men help to maintain
Wallingford.

[748] Widukind, I. 35. For comments see Waitz, Heinrich V. 95;
Richter, Annalen, iii. 8; Giesebrecht, Kaiserzeit (ed. 5), i.
222, 811; Keutgen, Ursprung der deutschen Stadtverfassung, p.
44. Giesebrecht holds that Edward's measures may well have
been Henry's model.

[749] A.-S. Chron. ann. 894.

[750] A charter of 899 (K. v. p. 141) professes to tell how King
Alfred, Abp Plegmund and Æthelred ealdorman of the Mercians
held a moot 'de instauratione urbis Londoniae.' One result of
this moot was that two plots of land inside the walls, with
hythes outside the walls, were given by the king, the one to
the church of Canterbury, the other to the church of
Worcester. How will the _instauratio_ of London be secured by
such grants?

[751] K. 1144 (v. 280). Other cases: K. 663 (Chichester), 673
(Winchester), 705 (Warwick), 724 (Warwick), 746 (Oxford), 1235
(Winchester).

[752] K. 765-6, 805.

[753] Schmid, App. V. This might mean a seat (of justice) in the
gate of his own _burh_. But this document will hardly be older
than, if so old as, cent. x., by which time we should suppose
that _burh_ more often pointed to a borough than to a strong
house. We may guess that in the latter sense it was supplanted
by the _hall_ of which we read a great deal in Domesday. See
above, p. 109. However, it does not seem certain that O. E.
_geat_ can mean _street_.

[754] A.-S. Chron. ann. 994.

[755] Thorpe, Diplomatarium, 610. When the Confessor sends a writ to
London he addresses it to the bishop, portreeve and
burh-thegns. See K. iv. pp. 856, 857, 861, 872.

[756] Gross, Gild Merchant, i. 183, 189.

[757] Gross, op. cit. ii. 37.

[758] Hist. Eng. Law, i. 257.

[759] A.-S. Chron. ann. 1097: 'Eac manege sciran þe mid weorce to
Lundenne belumpon ...' Thorpe thought good to substitute
_scipan_ for _sciran_.

[760] D. B. i. 298. Outside York were some lands which gelded with
the city; 'et in tribus operibus Regis cum civibus erant.'
This refers to the _trinoda necessitas_.

[761] Sohm, Die Entstehung des deutschen Städtewesens: Leipzig,
1890.

[762] Ellis, Introduction, i. 248-253.

[763] D. B. i. 56 b.

[764] D. B. i. 1. Black Book of the Admiralty, ii. 158: 'the herring
season, that is from St. Michael's Day to St. Clement's (Nov.
23).' St. Andrew's Day is Dec. 1.

[765] Edward, I. 1; Æthelstan, II. 12, 13; IV. 2; VI. 10; Edmund,
III. 5; Edgar, IV. 7-11; Leg. Will. I. 45; Leg. Will. III. 10.
See Schmid, Glossar. s.v. _Marktrecht_.

[766] Edgar, IV. 3-6. We should expect rather 36 than 33, and
_xxxvi_ might easily become _xxxiii_.

[767] K. 280 (ii. 63), 316 (ii. 118).

[768] Kemble, Cod. Dip. 1075 (v. 142); Kemble, Saxons, ii. 328;
Thorpe, 136: 'ge landfeoh, ge fihtwite, ge stale, ge
wohceapung, ge burhwealles sceatinge.' In D. B. i. 173 it is
said that the Bishop of Worcester had received the third penny
of the borough. Apparently in the Confessor's day he received
£6, the third of a sum of £18. As to the early history of
markets, see the paper contributed by Mr C. I. Elton to the
Report of the Royal Commission on Market Rights, 1889.

[769] Æthelstan, II. 14.

[770] The general equivalence of _port_ and _burh_ we may perhaps
infer from Æthelstan, II. 14: No one is to coin money outside
a _port_, and there is to be a moneyer in every _burh_.

[771] Stockport, Langport, Amport, Newport-Pagnell, Milborne Port,
Littleport are instances. But a very small river might be
sufficient to make a place a haven.

[772] Seemingly if this O.-E. _port_ is not Lat. _portus_, it is
Lat. _porta_, and there is some fascination about the
suggestion that the _burh-geat_, or in modern German the
_Burg-gasse_, in which the market is held, was described in
Latin as _porta burgi_. In A.D. 762 (K. i. p. 133) we have a
house 'quae iam ad Quenegatum urbis Dorouernis in foro posita
est.' In A.D. 845 (K. ii. p. 26) we find a 'publica strata' in
Canterbury 'ubi appellatur Weoweraget,' that is, the gate of
the men of Wye. But what we have to account for is the
adoption of _port_ as an English word, and if our ancestors
might have used _geat_, they need not have borrowed. In A.D.
857 (K. ii. p. 63) the king bestows on the church of Worcester
certain liberties at a spot in the town of London, 'hoc est,
quod habeat intus liberaliter modium et pondera et mensura
sicut in porto mos est ad fruendum.' To have public weights
and measures is characteristic of a _portus_ (= haven). The
word may have spread outwards from London. Dr Stubbs (Const.
Hist. i. 439) gives a weighty vote for _porta_; but the
continental usage deserves attention. Pirenne, Revue
historique, lvii. 75: 'Toutes les villes anciennes [en
Flandre] s'y forment au bord des eaux et portent le nom
caractéristique de _portus_, c'est-à-dire de débarcadères.
C'est de ce mot _portus_ que vient le mot flamand _poorter_,
qui désigne le bourgeois.' See D. B. i. 181 b: 'in Hereford
Port.'

[773] D. B. i. 143.

[774] D. B. i. 230.

[775] Cutts, Colchester, 65; Round in The Antiquary, vol. vi. (1882)
p. 5.

[776] D. B. ii. 106-7. See Round, op. cit., p. 252.

[777] Hist. Eng. Law, i. 629.

[778] D. B. i. 252.

[779] D. B. i. 179. So at Chester (i. 262 b) it is considered
possible that the heir will not be able to pay the relief of
ten shillings and will forfeit the tenement.

[780] D. B. i. 336.

[781] D. B. ii. 116. See also the case of Thetford (D. B. ii. 119),
where there had been numerous burgesses who could choose their
lords.

[782] D. B. i. 280.

[783] D. B. i. 336 b.

[784] D. B. ii. 117.

[785] D. B. i. 2. In 923 (K. v. p. 186) we hear of land outside
Canterbury called _Burhuuare bocaceras_, apparently acres
booked to [certain] burgesses.

[786] D. B. i. 100.

[787] D. B. ii. 107: 'In commune burgensum iiii. xx. acrae terrae;
et circa murum viii. percae; de quo toto per annum habent
burgenses lx. sol. ad servicium regis si opus fuerit, sin
autem, in commune dividunt.' As to this most difficult
passage, see Round, Antiquary, vol. vi. (1882) p. 97. Perhaps
the most natural interpretation of it is that the community or
commune of the burgesses holds this land and receives by way
of rent from tenants, to whom it is let, the sum of 60
shillings a year, which, if this be necessary, goes to make up
what the borough has to pay to the king, or otherwise is
divisible among the burgesses. But, as Mr Round rightly
remarks, 60 shillings for this land would be a large rent.

[788] D. B. i. 2: 'Ipsi quoque burgenses habebant de rege 33 acras
terrae in gildam suam.' Another version says, '33 agros terre
quos burgenses semper habuerunt in gilda eorum de donis omnium
regum.' The document here cited is preserved in a cartulary of
St Augustin, and is printed in Larking, Domesday of Kent, App.
35. It is closely connected with the Domesday Survey and is of
the highest interest.

[789] Gross, Gild Merchant, ii. 37.

[790] We do not even know for certain that when our record says that
the burgesses and the clerks held land 'in gildam suam,' more
was meant than that the land was part of their geldable
property. See Gross, Gild Merchant, i. 189. In the Exon
Domesday the geld is _gildum_.

[791] D. B. i. 154.

[792] See above, p. 179.

[793] In modern York the freemen inhabiting the different wards had
rights of pasture varying from ward to ward: Appendix to
Report of Municipal Corporations' Commissioners, 1835, p.
1745. York is one of the towns in which we may perhaps suppose
that there has been a gradual union of several communities
which were at one time agrarianly distinct. See D. B. i. 298.
Dr Stubbs seems to regard this as a common case and speaks of
'the townships which made up the _burh_' (Const. Hist. i.
101). We can not think that the evidence usually points in
this direction, and have grave doubts as to the existence
within the walls of various communities that were called
townships. Within borough walls we must not leap from parish
to township.

[794] D. B. i. 203. As to the whole of this matter see Mr Round's
paper on Domesday Finance in Domesday Studies, vol. i.

[795] Hist. Eng. Law, i. 635.

[796] D. B. i. 219.

[797] The case of London is anomalous; but not so anomalous as it is
often supposed to be. On this point see Round, Geoffrey de
Mandeville, 347 ff. On the Pipe Roll of 2 Hen. II. (pp. 24,
28) the citizens of Lincoln are accounting for a farm of £180,
while the sheriff in consequence of this arrangement is
credited with £140 (blanch) when he accounts for the farm of
the shire. This is as yet a rare phenomenon.

[798] As to the round sums cast on the boroughs, see Round in
Domesday Studies, i. 117 ff.; also Round, Feudal England, 156.

[799] This may not have been the case in East Anglia.

[800] D. B. i. 252.

[801] D. B. i. 298. Of York we read: 'In the geld of the city are 84
carucates of land, each of which gelds as much as one house in
the city.' This seems to point to an automatic adjustment. To
find out how much geld any house pays, divide the total sum
that is thrown upon York by the number of houses + 84.

[802] Mr Round (Domesday Studies, i. 129) who has done more than
anyone else for the elucidation of the finance of Domesday,
has spoken of 'the great Anglo-Saxon principle of _collective
liability_.' This may be a useful term, provided that we
distinguish (_a_) liability of a corporation for the whole tax
whenever it is levied; (_b_) joint and several liability of
all the burgesses for the whole tax whenever it is levied;
(_c_) liability of each burgess for a share of the whole tax,
the amount that he must pay in any year being affected by an
increase or decrease in the number of contributories.

[803] See the entry touching Colchester, above, p. 201, note 787.

[804] D. B. i. 1.

[805] D. B. i. 238. The custom of Warwick was that when the king
made an expedition by land ten burgesses of Warwick should go
for all the rest. He who did not go when summoned [summoned by
whom?] paid 100 shillings to the king; [so his offence was
against the king not against the town.] And if the king went
against his enemies by sea, they sent him four boat-swains or
four pounds in money.

[806] D. B. i. 56 b.

[807] D. B. i. 179.

[808] At Chester (D. B. i. 262 b) the twelve civic _iudices_ paid a
fine if they were absent without excuse from the 'hundret.'
This seems to mean that their court was called a hundred moot.
It is very possible that, at least in the earliest time, the
moot that was held in the borough had jurisdiction over a
territory considerably larger than the walled space, and in
this case the urban would hardly differ from the rural
hundred. A somewhat new kind of 'hundred' might be formed
without the introduction of any new idea.

[809] D. B. i. 336.

[810] Hist. Eng. Law, i. 631.

[811] Green, Town Life, vol. i. ch. xi.

[812] D. B. i. 189.

[813] D. B. i. 336 b.

[814] D. B. i. 336 b.

[815] D. B. i. 298.

[816] D. B. i. 262 b.

[817] R. H. i. 354-6.

[818] Besides the well known English books, see a paper by Konrad
Maurer, Sitzungsberichte der Akademie der Wissenschaften zu
München, Philosoph.-philolog. Classe, 1887, vol. ii. p. 363.
In the Leges Edw. Conf. 38 § 2, the 'lagemanni et meliores
homines de burgo' seem to serve as inquest men, rather than
doomsmen; while the _lahmen_ of the document concerning the
Dunsetan (Schmid, App. I.) seem to be doomsmen.

[819] Gross, Gild Merchant, ii. 114 ff.; Hist. Eng. Law, i. 642.

[820] D. B. ii. 290, Ipswich: 'Modo vero sunt 110 burgenses qui
consuetudinem reddunt et 100 pauperes burgenses qui non
possunt reddere ad geltum Regis nisi unum denarium de suis
capitibus.' D. B. ii. 116, Norwich: 'Modo sunt in burgo 665
burgenses anglici et consuetudines reddunt, et 480 bordarii
qui propter pauperiem nullam reddunt consuetudinem.'

[821] D. B. i. 108 b.

[822] Whether the _novum burgum_ mentioned in D. B. i. 17 is
Winchelsea or Rye or a new town at Hastings seems to be
disputable. See Round, Feudal England, 568.

[823] D. B. i. 26 b, 27.

[824] D. B. i. 4 b.

[825] D. B. i. 4 b. See also, 10 b.

[826] D. B. i. 12.

[827] D. B. i. 345, 283 b. It has been said that Leofric gave Newark
to the see.

[828] Dodsworth's Yorkshire Notes, ed. R. Holmes (reprinted from
Yorkshire Archaeological Journal), p. 126.

[829] D. B. i. 316 b. The estate is ingeldable and therefore looks
like an ancient possession of the king.

[830] D. B. 337 b: 'Toftes sochemanorum teignorum.' Some
commentators have seen here 'sokemen thegns'; but the other
interpretation seems far more probable.

[831] Had these towns been described in Great Domesday, they would
probably have been definitely placed outside the _Terra
Regis_.

[832] D. B. ii. 311, 312, 385.

[833] D. B. ii. 319 b.

[834] D. B. ii. 389 b: 'semper unum mercatum modo 43 burgenses.' For
Sudbury, see D. B. ii. 286 b; for Beccles, 369 b.

[835] D. B. i. 136 b: 'In burbio huius villae 52 burgenses.' The
word _burbium_ looks as if some one had argued that as
_suburbium_ means an annex to a town, therefore _burbium_ must
mean a town. But the influence of _burh_, _burg_, _bourg_ may
be suspected. A few pages back (132) the _burgum_ of Hertford
seems to be spoken of as 'hoc suburbium.' It is of course to
be remembered that _burgus_ or _burgum_ was a word with which
the Normans were familiar: it was becoming the French _bourg_.
It is difficult to unravel any distinctively French thread in
the institutional history of our boroughs during the Norman
age; but the little knot of traders clustered outside a lord's
castle at Clare or Berkhampstead, at Tutbury, Wigmore or
Rhuddlan may have for its type rather a French _bourg_ than an
English _burh_. Indeed at Rhuddlan (i. 269) the burgesses have
received the law of Breteuil.

[836] For Taunton, see D. B. i. 87 b: 'Istae consuetudines pertinent
ad Tantone: burgeristh, latrones, pacis infractio, hainfare,
denarii de hundred, denarii S. Petri, ciricieti.' Compare the
document which stands as K. 897 (iv. 233): 'Ðæt is ærest ...
seo men redden into Tantune cirhsceattas and burhgerihtu.' See
also K. 1084 (v. 157): 'ut episcopi homines [apud Tantun] tam
nobiles quam ignobiles ... hoc idem ius in omni haberent
dignitate quo regis homines perfruuntur, regalibus fiscis
commorantes.'

[837] D. B. ii. 5 b.

[838] D. B. ii. 104.

[839] D. B. i. 163.

[840] D. B. i. 75.

[841] D. B. i. 100, 108 b.

[842] D. B. i. 86 b.

[843] D. B. i. 87.

[844] See above, p. 188.

[845] D. B. 38 b, 44.

[846] D. B. 64 b.

[847] D. B. 66.

[848] The burgesses belonging to Ramsbury are really at Cricklade:
D. B. i. 66.

[849] It seems very possible that already before the Conquest some
boroughs had fallen out of the list. In cent. x. we read, for
example, of a _burh_ at Towcester and of a _burh_ at Witham in
Essex. We must not indeed contend that a shire-supported town
with tenurial heterogeneity came into existence wherever
Edward the Elder or the Lady of the Mercians 'wrought a
_burh_.' But still during a time of peace the walls of a petty
_burh_ would be neglected, and, if the great majority of the
inhabitants were the king's tenants, there would be little to
distinguish this place from a royal village of the common
kind. See for Towcester, D. B. i. 219 b; for Witham, D. B. ii.
1 b. In later days we may see an old borough, such as
Buckingham, falling very low and sending no burgesses to
parliament. It will be understood that we have not pledged
ourselves to any list of the places that were boroughs in
1066. There are difficult cases such as that of St Albans; see
above, p. 181. But, we are persuaded that few places were
deemed _burgi_, except the shire towns.

[850] A last relic of the old borough peace may be found in
Britton's definition of burglary (i. 42): 'Burglars are those
who feloniously in time of peace break churches, or the houses
of others, or the walls or gates of our cities or boroughs
(_de nos citez ou de nos burgs_).'

[851] By a charter of enfranchisement a lord might introduce burgage
tenure and abolish 'servile customs'; but it must be, to say
the least, doubtful whether he could, without the king's
licence, confer upon a village the public status of a borough
and e.g. authorize it to behave like a hundred before the
justices in eyre. This is one of the reasons why sheriffs can
draw the line where they please, and why some towns which have
been enfranchised never obtain a secure place in the list of
parliamentary boroughs.

[852] Hist. Eng. Law, i. 630. When it is being said that if land in
the borough escheats, it always escheats to the king, the
mesne tenures are already being forgotten within the borough,
just as in modern times we have forgotten them in the open
country. The burgher's power of devising his land made escheat
a rare event, and so destroyed the evidence of mesne tenure.

[853] See above, p. 212. Also the king might give away an undivided
share of the borough. Apparently the church of Worcester had
received the third penny of the city ever since the day when
the _burh_ was wrought by the ealdorman and lady of the
Mercians. See above, p. 194.

ESSAY II.

ENGLAND BEFORE THE CONQUEST.

[Object of this Essay.]

No one can spend patient hours in examining the complex web disclosed by Domesday Book without making some theories, at least some guesses, about the political, social and economic threads of which that web has been woven. But if we here venture to fashion and state a few such theories or such guesses, it is with no hope that they will be a complete explanation of old English history. For, in the first place, we are to speak mainly of the things of the law, of legal ideas and legal forms, and once for all we may protest that we have no wish to overestimate their importance. The elaborate and long continued development to which we point when we speak of 'feudalism,' can not be fully explained by any discussion of legal ideas and legal forms. On the other hand, it can not be fully explained without such discussion, for almost all that we can know about it is to be found in legal documents. In the second place, we are to make a selection. Certain phases of our oldest legal history, notably those which are called 'constitutional,' have been so fully treated by classical books, that at the present moment there is no good reason why we should traverse the ground that has been covered. Therefore if, for example, we say little or nothing of the ancient Germanic _comitatus_ or of the relationship between lord and man in so far as it is a merely personal relationship, this will not be because we have overlooked these matters; it will be because there is nothing to be gained by our repeating what has been well and sufficiently said by Dr Konrad Maurer, Dr Reinhold Schmid, Dr Stubbs and others. And if, again, we lay great stress on what may be called the ecclesiastical phase of the feudalizing process, this will not be because we think it the only phase, it will be because we think that too little attention has been paid by English writers to the influence which the churches exercised upon temporal affairs by means of their endowments. The day for an artistically proportioned picture of the growth of feudalism has not yet come; the day for a quantitative analysis of the elements of feudalism may never come; for the present we must be content if we can bring out a few new truths or set a few old truths in a new light. The vast and intricate subject may be approached from many different quarters. If we can make some little progress along our chosen path, we shall be all the more willing to admit that progress along other paths is possible.

[Fundamental controversies as to Anglo-Saxon history.]

It can not but be, however, that this part of our work should be controversial, though it need not be polemical. We are told that 'in spite of all the labour that has been spent on the early history of England, scholars are still at variance upon the most fundamental of questions: the question whether that history began with a population of independent freemen or with a population of dependent serfs[854]'. Some exception may be taken to this statement. No one denies that for the purposes of English history slavery is a primitive institution, nor that in the seventh and eighth centuries there were many slaves in England. On the other hand, no one will assert that we can ascertain, even approximately, the ratio that the number of slaves bore to the number of free men. Moreover such terms as 'dependent' and 'independent' are not words that we can profitably quarrel over, since they are inexact and ambiguous. For all this, however, it may well be said that there are two main theories before the world. The one would trace the English manor back to the Roman villa, would think of the soil of England as being tilled from the first mainly by men who, when they were not mere slaves, were _coloni_ ascript to the land. The other would postulate the existence of a large number of free men who with their own labour tilled their own soil, of men who might fairly be called free 'peasant proprietors' since they were far from rich and had few slaves or servants, and yet who were no mere peasants since they habitually bore arms in the national host. What may be considered for the moment as a variant on this latter doctrine would place the ownership of the soil, or of large tracts of the soil, not in these free peasants taken as individuals, but in free village communities.

[The Romanesque theory unacceptable.]

Now we will say at once that the first of these theories we can not 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.]