Chapter XII: ARRINGTON. A vill of 4 hides (10)

These men were not peasants. The land that Oswald gave them they were not going to cultivate merely by their own labour and the labour of their sons and their slaves, though we are far from saying that they scorned to handle the plough. We have in Domesday Book a description of their holdings, and it is clear that in the Confessor's day, when some of Oswald's leases must yet have been in operation, the lessees had what we should describe as small manors with villeins and cottagers upon them. Thus, for example, Eadric the Steersman, who led the bishop's host, had an estate of five hides which in 1086 had three _villani_ and four _bordarii_, to say nothing of a priest, upon it[1086]. Like enough, what the bishop has been 'loaning' to his thegns has been by no means always 'land in demesne,' it has been 'land in service': in other words, a superiority, a seignory. Thus, as we say, another course of the feudal edifice is constructed. Above the cultivator stands the thegn or the _cniht_, who himself is a tenant under the bishop and who owes to the bishop services that are neither very light nor very definite. We can not but raise the question whether the cultivators, if we suppose them to be in origin free landowners, can support the weight of this superstructure without being depressed towards serfage. But we are not yet in a position to deal thoroughly with this question[1087].

[Loan-land and book-land.]

We must now return for a moment to the relation that exists between the loan and the book. _Lǽnland_ is contrasted with _bócland_; but historians have had the greatest difficulty in discovering the principle that lies beneath this distinction[1088]. Certainly we can not say that, while book-land is created and governed by a charter, there will be no written instrument, no book, creating and governing the _lǽn_. We have books which in unambiguous terms tell us that they bear witness to loans. Nor can we say that the holder of book-land will always have a perpetual right to the land, 'an estate in fee simple,' an estate to him and his heirs. In many cases a royal charter will create a smaller estate than this; it will limit the descent of the land to the heirs male of the donee. Moreover the written leases for three lives of which we have been speaking are 'books.' Thus in 977 Oswald grants three manses to his thegn Eadric for three lives, and the charter ends with a statement which tells us in English that Oswald the archbishop is booking to Eadric his thegn three hides of land which Eadric formerly held as _lǽnland_[1089]. A similar deed of 985 contains a similar statement; five hides which Eadric held as _lǽnland_ are now being booked to him, but booked only for three lives[1090]. In yet another of Oswald's charters we are told that the donee is to hold the land by way of book-land as amply as he before held it by way of _lǽnland_[1091]. After this it is needless to say that book-land may be burdened with rents and services. But indeed it would seem that Oswald's thegns and knights held both book-land and _lǽnland_. It was book-land because it had been booked to them, and yet very certainly it had only been loaned to them[1092].

[Book-land in the dooms.]

Let us then turn to the laws and read what they say about book-land. Two rules stand out clearly. Æthelred the Unready declares that every _wíte_ incurred by a holder of book-land is to be paid to the king[1093]. Cnut declares that the book-land of the outlaw, whosesoever man he may be, and of the man who flies in battle is to go to the king[1094]. These laws seem to put before us the holder of book-land as standing by reason of his land in some specially close relationship to the king. If we may use the language of a later day, the holder of book-land is a tenant in chief of the king, and this even though he may have commended himself to someone else. On the other hand, if the holder of _lǽnland_ commits a grave crime, his land reverts, or escheats or is forfeited to the man who made the _lǽn_[1095]. And yet, though this be so and though Oswald's thegns will in some sense or another be holding book-land, we may be quite certain that should one of them be outlawed the bishop will claim the land. Indeed he is careful about this as about other matters. Often he inserts in his charter a clause saying that, whatever the grantee may do, the land shall return unforfeited to the church.

[Relation of loan-land to book-land.]

Any solution of these difficulties must be of a somewhat speculative kind. We fashion for ourselves a history of the book and of the land-loan which runs as follows:--The written charter first makes its appearance as a foreign and ecclesiastical novelty. For a very long time it is used mainly, if not solely, as a means of endowing the churches with lands and superiorities. It is an instrument of a very solemn character armed with the anathema and sanctioned by the crosses of those who can bind and loose. Usually it confers rights which none but kings can bestow, and which even kings ought hardly to bestow save with the advice of their councillors. A mass of rights held under such a charter is book-land, or, if we please, the land over which such rights are exercisable, is book-land for the grantee. In course of time similar privileges are granted by the kings to their thegns, though the book does not thereby altogether lose its religious traits. It is long before private persons begin to use writing for the conveyance or creation of rights in land. The total number of the books executed by persons who are neither kings, nor underkings, nor prelates of the church, was, we take it, never very large; certainly the number of such books that have come down to us is very small.

[Royal and other books.]

Nothing could be more utterly unproved than the opinion that in Anglo-Saxon times written instruments were commonly used for the transfer of rights in land. Let us glance for a moment at the documents that purport to have come to us from the tenth century. Genuine and spurious we have near six hundred. But we exclude first the grants made by the kings, secondly Oswald's leases and a few similar documents executed by other prelates, thirdly a few testamentary or quasi-testamentary dispositions made by the great and wealthy. Hardly ten documents remain. Let us observe their nature. The ealdorman and lady of the Mercians make a grant to a church in royal fashion[1096]; but in every other case in which we have a document which we can conceive as either transferring rights in land or as being formal evidence of such a transfer, the consent of the king or of the king and witan to the transaction is stated, and with hardly an exception the king executes the document[1097]. Even the holder of book-land who wished to alienate it, for example, the thegn who wished to pass on his book-land to a church, did not in general execute a written conveyance. One of three courses was followed. The donor handed over his own book, the book granted by the king, and apparently this was enough; or the parties to the transaction went before the king, delivered up the old and obtained a new book; or the donor executed some brief instrument--sometimes a mere note endorsed on the original book--stating how he had transferred his right[1098]. But in any case, according to the common usage of words, a usage which has a long history behind it, it is only the man who is holding under a royal privilege who has 'book-land.' It is to this established usage that the laws refer when they declare that the king and no lower lord is to have the _wíte_ from the holder of book-land, and that when book-land is forfeited it is forfeited to the king. For all this, however, if you adhere to the letter, book-land can only mean land held by book. Now from a remote time men have been 'loaning' land, and prelates when they have made a loan have sometimes executed a written instrument, a book. A prelate can pronounce the anathema and the recipient of the _lǽn_ may well wish to be protected, not merely by writing, but by Christ's rood. When therefore Bishop Oswald grants a written lease to one of his thegns who heretofore has been in enjoyment of the land but has had no charter to show for it, we may well say that in the future this thegn will have book-land, though at the same time he has but loan-land. We have no scruple about charging our ancestors with having a confused terminology. The confusion is due to a natural development; 'books' were formerly used only for one purpose, they are beginning to be used for many purposes, and consequently 'book-land' may mean one thing in one context, another in another. We may say that every one who holds under a written document holds book-land, or we may still confine the name 'book' to that class of books which was at one time the only class. The king's charters, the king's privileges, have been the only books; they are still books in a preeminent sense. Just so in later days men will speak of 'tenure in capite' when what they really mean is 'tenure in capite of the crown by military service[1099].'

[The gift and the loan.]

But there is a deeper cause of perplexity. Once more we must repeat that the gift shades off into the loan, the loan into the gift. The loan is a gift for a time. It is by words of donation ('I give,' 'I grant') that Oswald's _beneficia_ are _praestita_ to his knights and thegns. Conversely, the king's most absolute gift leaves something owing and continuously owing to him; it may be prayers, it may be fealty and obedience. And having considered by how rarely good fortune it is that we know the terms of Oswald's land-loans, how thoroughly we might have mistaken their nature but for the preservation of a single document, we shall be very cautious in denying that between many of the holders of book-land and the king there was in the latter half of the tenth century a relationship for which we have no other name than feudal tenure. If Oswald's charters create such a tenure, what shall we say of the numerous charters whereby Edred, Edwy, Edgar and Æthelred grant land to their thegns in consideration of fealty and obedience? Must not these thegns fulfil the whole _lex equitandi_; will they not lose their lands if they fail in this service? True that the rights conferred upon them are not restrained within the compass of three lives but are heritable _ad infinitum_. But does this affect the character of their tenure? Can we--we can not in more recent times--draw any inference from 'the _quantum_ of the estate' to 'the quality of the tenure'? On the whole, we are inclined to believe that the practice of loaning lands affected the practice of giving lands, there being no sharp and formal distinction between the gift and the loan, and that when Edward the Confessor died no great injustice would have been done by a statement that those who held their lands by royal books held their lands 'of' the king. This at least we know, that the formula of dependent tenure ('_A_ holds land of _B_') was current in the English speech of the Confessor's days and that some of the king's thegns held their land 'of' the king[1100]. We may guess that those old terms 'book-land' and 'loan-land' would soon have disappeared even from an unconquered England, for it was becoming plain that the book bears witness to a loan. A new word was wanted; that word was _feudum_.

FOOTNOTES:

[1021] K. 729 (iv. 3).

[1022] It is noticeable that the verb _syllan_ usually means 'to
give.' Words such as _vendere_ are avoided.

[1023] A.D. 941, K. 390 (ii. 234) condemned by Kemble: 'amabili
vassallo meo.'--A.D. 952, K. 431 (ii. 302): 'cuidam
vassallo.'--A.D. 956? K. 462 (ii. 338): 'meo fideli
vassallo.'--A.D. 967, K. 534 (iii. 11): 'meo fideli
vassallo.'--A.D. 821, K. 214 (i. 269): 'expeditionem cum 12
vassallis et cum tantis scutis exerceant.' After the Norman
Conquest the word is very rare in our legal texts.

[1024] K. 179 (i. 216): 'eo videlicet iure si ipse nobis et
optimatibus nostris fidelis manserit minister et inconvulsus
amicus.'

[1025] K. 408 (ii. 263): 'eatenus ut vita comite tam fidus mente
quam subditus operibus mihi placabile obsequium praebeat, et
meum post obitum cuicunque meorum amicorum voluero eadem
fidelitate immobilis obediensque fiat.'

[1026] The terms of the oath are given in Schmid, App. X.

[1027] See above, p. 69.

[1028] See above, p. 69.

[1029] K. 214 (i. 269); H. & S. iii. 556.

[1030] D. B. i. 172; see above, p. 159.

[1031] Cnut, II. 13, 77.

[1032] See above, p. 156.

[1033] K. 1035 (v. 76). The charter is not beyond suspicion, but
Kemble has received, and the editors of the Councils (H. & S.
iii. 607) have refused to condemn it.

[1034] K. 1020 (v. 60); B. i. 409; H. & S. iii. 528.

[1035] See Brunner, Die Landschenkungen der Merowinger und der
Agilolfinger, Forschungen, p. 6: 'He who receives an order
acquires in the insignia of the order which are delivered to
him an ownership of an extremely attenuated kind. He can not
give them away or sell them or let them out or give them in
dowry. When he dies they go back to the giver.' We are not
aware of any English decision on such matters as these. In a
charter for Winchester (B. ii. 238) Edward the Elder is
represented as saying that the land that he gives to the
church is never to be alienated. If, however, the monks must
sell or exchange it, then they may return it 'to that royal
family by whom it was given to them.'

[1036] Brunner, Zur Rechtsgeschichte d. röm. u. germ. Urkunde, p.
190; Hist. Eng. Law, ii. 12.

[1037] See Brunner, Landschenkungen, Forschungen, p. 1. In this
paper Dr Brunner appealed to our English law, in order that
he might settle the famous controversy between Waitz and Roth
as to the character of the gifts of land made by the
Merovingians. On p. 5 he denies that our rule about 'words of
inheritance' should be called feudal. Its starting point is
the principle that the quality [an English lawyer would
add--and the quantity also] of the 'estate' (_Besitzrecht_)
can be determined by the donor's words, by a _lex donationis_
imposed by the donor on the land.

[1038] Brunner, Geschichte der Urkunde, p. 200.

[1039] Heming's Cartulary, i. 259. 'Post mortem autem eius, filius
eius ... testamentum patris sui irritum faciens....' Ibid. p.
263: 'Brihtwinus ... eandem terram Deo et Sanctae Mariae
obtulit, eundemque nepotem suum monachum fecit. Filius eius
etiam, Brihtmarus nomine, pater ipsius iam dicti Edwini
monachi, cum heres patris extitisset, ... ipsam ... villam
monasterio dedit.' Hist. Eng. Law, ii. 250.

[1040] Brunner, Forschungen, p. 22; Hist. Eng. Law, i. 292.

[1041] Crawford Charters (ed. Napier and Stevenson), pp. 23, 126.
Early in cent. xi. a bishop in his testament declares how he
gives 'to each retainer his steed which he had lent him.'

[1042] See the wills collected by Thorpe; p. 501: Gift to the queen
for her mediation that the will may stand. Ibid. p. 505: 'And
bishop Theodred and ealdorman Eadric informed me, when I gave
my lord the sword that king Edmund gave me ... that I might
be worthy of my testament (_mine quides wirde_). And I never
... have done any wrong to my lord that it may not so be.'
Ibid. p. 519: 'And I pray my dear lord for the love of God
that my testament may stand.' See also pp. 528, 539, 543,
552, 576.

[1043] Thus ealdorman Alfred disposes (but with the consent of the
king and all his witan) of his 'heritage' as well as of his
book-land; Thorpe, 480. Lodge, Essays on A.-S. Law, p. 108,
supposes a certain power of regulating the descent of 'family
land' within the family.

[1044] K. 414 (ii. 273): 'Ego Wulfricus annuente et sentiente et
praesente domino meo rege ... concessi ... terram iuris mei
... quam praefatus rex Eadredus mihi dedit in perpetuam
hereditatem cum libro eiusdem terrae.'--K. 1130 (v. 254):
'Ego Eadulfus dux per concessionem domini mei regis ...
concedo ... has terras de propria possessione mea quas idem
... rex dedit in perpetuam hereditatem.'--K. 1226 (vi. 25):
'Ego Ælfwordus minister Regis Eadgari concedo ... annuente
domino meo rege ... villam unam de patrimonio meo.'

[1045] Except in the cases, comparatively rare before the statute
_Quia Emptores_, in which the feoffee is to hold of the
feoffor's lord.

[1046] Fustel de Coulanges, Les origines du système féodal; Brunner,
D. R. G. i. 209-12.

[1047] K. 1058 (v. 115); B. ii. 89: 'et nullus iam licentiam
ulterius habeat Christi neque sancti Petri ... neque ausus
sit ulterius illam terram praedictam _rogandi in
beneficium_.'

[1048] K. 1089 (v. 166); B. ii. 281. See also K. 262 (ii. 33); B.
ii. 40; Birhtwulf of Mercia takes a lease for five lives from
the church of Worcester and assigns it to a thegn. The
consideration for this lease is a promise that for the future
he will not make gifts out of the goods of the church.

[1049] K. 1287 (vi. 124). The verb _praestare_ was the regular term
for describing the action of one who was constituting a
_precarium_ or _beneficium_. In K. 1071 (v. 138) Bp Werferth
of Worcester obtains a lease for three lives having
petitioned for it; 'terram ... humili prece deprecatus fui.'

[1050] For _commodare_ see K. v. pp. 166, 169, 171; for _lǽnan_,
ibid. 162; for _lǽtan_, ibid. 164.

[1051] See Bp Oswald's leases.

[1052] K. 91 (i. 109).

[1053] K. 165 (i. 201).

[1054] K. 279 (ii. 61).

[1055] K. 339 (ii. 149).

[1056] See the charter of Cenwulf for Winchcombe, H. & S. iii. 572
and the editors' note at 575. See also K. 610 (iii. 157),
1058 (v. 115), 1090 (v. 169).

[1057] K. 262 (ii. 33) is a lease for five lives by the church of
Worcester; but the lessee is a king.

[1058] Nov. 7, 3. See Brunner, Zur Rechtsgeschichte der röm. u.
germ. Urkunde, 187. Theodore of Tarsus would perhaps have
known this rule. It does not belong to the general western
tradition of Roman law, but is distinctly Justinianic.

[1059] K. 165 (i. 201). The 'limitation' is not very plain; but we
seem to have here a lease for two lives.

[1060] K. 182 (i. 220).

[1061] K. 262 (ii. 33); B. ii. 40: lease by church of Worcester to
the king for five lives: 'et illi dabant terram illam ea
tamen conditione ut ipse rex firmius amicus sit episcopo
praefato et familia in omnibus bonis eorum.' K. 279 (ii. 61):
lease by the same church to a dux and his wife with
stipulation for _amicitia_.

[1062] These are preserved in Heming's Cartulary; see K. 494-673.

[1063] In K. 498 (ii. 386) the _aecclesiasticus census_ is two
_modii_ of clean grain; in K. 511 (ii. 400) the lessee must
mow once and reap once 'with all his craft'; in K. 508 (ii.
398) he must sow two acres with his own seed and reap it; in
K. 661 (iii. 233) is a similar stipulation.

[1064] In many cases the clause of immunity has become very obscure
owing to a copyist's blunder. It is made to run thus: 'Sit
autem terra ista libera omni regi nisi aecclesiastici censi.'
Some mistake between _rei_ and _regi_ may be suspected. What
we want is what we get in some other cases, e.g. K. 651, 652,
viz. 'libera ab omni saecularis rei negotio.' The following
forms are somewhat exceptional; K. 530 and 612, 'butan
ferdfare and walgeworc and brycgeworc _and circanlade'_; K.
623, 666, 'excepta sanctae dei basilicae suppeditatione et
ministratione'; K. 625, 'exceptis sanctae dei aecclesiae
necessitatibus et utilitatibus.'

[1065] Kemble gives it in Cod. Dipl. 1287 (vi. 124) and in an
appendix to vol. i. of his history. Also he speaks of it in
Cod. Dipl. i. xxxv., and there says that it is 'a laboured
justification' by Bp Oswald of his proceedings. To my mind it
is nothing of the kind. Oswald is proud of what he has done
and wishes that a memorial of his acts may be carefully
preserved for the benefit of the church. Of course, if
regarded from our modern point of view, the form of the
document is curious. The bishop seems engaged in an attempt
to bind his lessees by his own unilateral account of the
terms to which they have agreed. But his object is to have of
the contract a record which has been laid before the king and
the witan and which, if we are to use modern terms, will have
all the force of an act of parliament, to say nothing of the
anathema.

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

[1067] It may be that the bishop has just obtained from the king a
grant or confirmation of the hundredal jurisdiction over what
is to be Oswaldslaw.

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

[1069] K. vi. 125: 'et ad totum piramiticum opus aecclesiae calcis
atque ad pontis aedificium ultro inveniantur parati.' The
translation here given is but guesswork; we suppose that
_piramiticus_ means 'of or belonging to fire (πῦρ).'

[1070] Ibid.: 'insuper ad multas alias indigentiae causas quibus
opus est domino antistiti frunisci, sive ad suum servitium
sive ad regale explendum, semper illius archiductoris
dominatui et voluntati qui episcopatui praesidet ... subditi
fiant.' Is _archiductor_ but a fine name for the bishop? We
think not. In the Confessor's day Eadric the Steersman was
'ductor exercitus episcopi ad servitium regis' (Heming, i.
81), and it would seem from this that the tenants were to be
subject to a captain set over them by the bishop. But in the
famous, if spurious, charter for Oswaldslaw (see above, p.
268) Edgar says that on a naval expedition the bishop's men
are not to serve under the ordinary officers 'sed cum suo
archiductore, videlicet episcopo, qui eos defendere et
protegere debet ab omni perturbatione et inquietudine.' This
would settle the question, could we be certain that the words
'videlicet episcopo' were not the gloss of a forger who was
improving an ancient instrument. For our present purpose,
however, it is no very important question whether the
_archiductor_, the commander in chief of these tenants, is
the bishop himself or an officer of his.

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

[1072] D. B. 174. Compare the entry on f. 175 b relating to the
church-scot of Pershore.

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

[1074] Heming, i. 81: 'Edricus qui fuit, tempore regis Edwardi,
stermannus navis episcopi et ductor exercitus eiusdem
episcopi ad servitium regis.' D. B. i. 173 b: 'Edricus
stirman' held five hides of the bishop.

[1075] Heming, i. 77: 'Et [episcopus] deracionavit socam et sacam de
Hamtona ad suum hundred de Oswaldes lawe, quod ibi debent
placitare et geldum et expeditionem ... persolvere.'

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

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

[1078] In this respect Oswald's leases seem to have closely
resembled a form of lease, known as _manusfirma_, which
became common in the France of the eleventh century:
Lamprecht, Beiträge zur Geschichte des französischen
Wirthschaftslebens, pp. 59, 60.

[1079] Heming, i. 259: 'Ac primo videndum quae terrae trium heredum
temporibus accommodatae sint, post quorum decessum iuri
monasterii redderentur, quaeve postea iuxta hanc conventionem
redditae, quaeve iniuste sunt retentae, sive ipsorum, qui eas
exigere deberent, negligentia, sive denegatae sint iniquorum
hominum potentia.' See also the story told by Heming on p.
264.

[1080] Lamprecht, op. cit. p. 61, says that it was quite uncommon
for the French landlord to get back his land if once he let
it for three lives. One of the Worcester leases, but one
stigmatized by Kemble (ii. 152), is a lease for three lives
'nisi haeredes illius tempus prolixius a pontifice sedis
illius adipisci poterint.'

[1081] K. 637 (iii. 194): 'si in viduitate manere decreverit, vel
magis nubere voluerit, ei tamen viro qui episcopali dignitati
supradictae aecclesiae sit subiectus.'

[1082] D. B. i. 173: 'Hanc terram tenuit Sirof de episcopo T. R. E.,
quo mortuo dedit episcopus filiam eius cum hac terra cuidam
suo militi, qui et matrem pasceret et episcopo inde
serviret.'

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

[1084] See above, p. 267.

[1085] D. B. i. 172 b: 'Hae praedictae ccc. hidae fuerunt de ipso
dominio aecclesiae, et si quid de ipsis cuicunque homini
quolibet modo attributum vel praestitum fuisset ad serviendum
inde episcopo, ille qui eam terram praestitam sibi tenebat
nullam omnino consuetudinem sibimet inde retinere poterat
nisi per episcopum, neque terram retinere nisi usque ad
impletum tempus quod ipsi inter se constituerant, et nusquam
cum ea terra se vertere poterat ... Kenewardus tenuit et
deserviebat sicut episcopus volebat ... Ricardus tenuit ad
servitium quod episcopus voluit ... Godricus tenuit serviens
inde episcopo ut poterat deprecari ... Godricus tenuit ad
voluntatem episcopi.'

[1086] D. B. 173 b.

[1087] Oswald's tenants closely resemble the _ministeriales_ of
foreign bishops; see Waitz, Verfassungsgeschichte, v.
283-350. Oswald's _lex equitandi_ may be compared with what
is said (ibid. p. 293) of a bishop of Constance: 'quibus
omnibus hoc ius constituit, ut cum abbate equitarent eique
domi forisque ministrarent, equos suos tam abbati quam
fratribus suis quocumque necesse esset praestarent,
monasterium pro posse suo defensarent.'

[1088] Kemble, Saxons, i. 310 ff.; K. Maurer, Krit. Ueb. i. 104;
Essays in Anglo-Saxon Law, No. ii. (Lodge); Brunner,
Geschichte d. röm. u. germ. Urkunde, 182.

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

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

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

[1092] K. 1287 (vi. 125): 'propter beneficium quod eis praestitum
est.' D. B. i. 173 b. It may cross the reader's mind that the
leases of which Oswald speaks in his letter to Edgar are not
the transactions recorded in the charters that have come down
to us, but other and unwritten leases. But Domesday Book and
the stories told by Heming make against this explanation.

[1093] Æthelr. I. 1, § 14.

[1094] Cnut, II. 13, 77.

[1095] K. 328 (ii. 133): A certain Helmstan is guilty of theft 'and
mon gerehte ðæt yrfe cinge forðon he wes cinges mon and
Ordlaf feng to his londe forðan hit wæs his læn ðæt he on
sæt.'

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

[1097] K. 414 (ii. 273): conveyance by Wulfric with the king's
consent.--K. 491 (ii. 379): conveyance by Wulfstan with
consent of king and witan, who execute the deed.--K. 690-1
(iii. 286-8): conveyances by Æscwig executed by king and
witan.--K. 1124, 1130 (v. 246-54): conveyances confirmed by
king and bishops.--K. 1201 (v. 378): exchange with king's
consent.--K. 1226 (vi. 25): conveyance by a thegn reciting
king's consent. A few documents we must leave unclassified;
K. 499, 591, 693; we do not know how they were executed or
what was their evidential value.

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

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

[1100] K. 843 (iv. 201): 'swa full and swa forð swa Ðurstan min
huskarll hit furmest of me heold.'--K. 846 (iv. 205): 'swa
full and swa forð swa Sweyn mi may hit formest of me
held.'--K. 826 (iv. 190): 'swa Ælfwin sy nunne it heold of
ðan minstre.'--K. 827 (iv. 190): 'swa Sihtric eorll of ðan
minstre þeowlic it heold.' If K. 1237 (vi. 44) be genuine
(and Kemble has not condemned it) then already in the middle
of the tenth century 'Goda princeps tenuit terram de rege,'
nor only so, 'tenuit honorem de rege'; but this document is
unacceptable. At best it may be a late Latin translation of
an English original.

§ 5. _The Growth of Seignorial Power._

[Subjection of free men.]

We now return to our original theme, the subjection to seignorial power of free land-holders and their land, for we now have at our command the legal machinery, which, when set in motion by economic and social forces, is capable of effecting that subjection. Let us suppose a village full of free land-holders. The king makes over to a church all the rights that he has in that village, reserving only the _trinoda necessitas_ and perhaps some pleas of the crown. The church now has a superiority over the village, over the ceorls; it has a right to receive all that, but for the king's charter, would have gone to him.

[The royal grantee and his land.]

In the first place, it has a right to the _feorm_, the _pastus_ or _victus_ that the king has hitherto exacted. We should be wrong in thinking that in the ninth century (whatever may have been the case in earlier times) this exaction was a small matter. In 883 Æthelred ealdorman of the Mercians with the consent of King Alfred freed the lands of Berkeley minster from such parts of the king's _gafol_ or _feorm_ as had until then been unredeemed. In return for this he received twelve hides of land and thirty mancuses of gold, and then in consideration of another sixty mancuses of gold he proceeded to grant a lease of these twelve hides for three lives[1101]. The king had been deriving a revenue from this land 'in clear ale, in beer, in honey, in cattle, in swine and in sheep.' In Domesday Book a 'one night's farm' is no trifle; it is all that the king gets from large stretches of his demesne[1102]. Having become entitled to this royal right, the church would proceed to make some new settlement with the villagers. Perhaps it would stipulate for a one night's farm for the monks, that is to say, for a provender-rent capable of supporting the convent for a day. In the middle of the ninth century a day's farm of the monks of Canterbury comprised forty sesters of ale, sixty loaves, a wether, two cheeses and four fowls, besides other things[1103]. When once a village is charged in favour of a lord with a provender-rent of this kind, the lord's grip upon the land may easily be tightened. A settlement in terms of bread and beer is not likely to be stable. Some change in circumstances will make it inconvenient to all parties and the stronger bargainer will make the best of the new bargain. The church will be a strong bargainer for it has an inexhaustible treasure-house upon which to draw. We, however, concerned with legal ideas, have merely to notice that the law will give free play to social, economic and religious forces which are likely to work in the lord's favour.

[Provender rents and the manorial economy.]

But a village charged with a 'provender-rent' may seem far enough removed from the typical manor of the twelfth and thirteenth centuries. In the one we see the villagers cultivating each for his own behoof and supplying the lord at stated seasons with a certain quantity of victuals; in the other the villagers spend a great portion of their time in tilling the lord's demesne land. In the latter case the lord himself appears as an agriculturist: in the former he is no agriculturist, but merely a receiver of rent. The gulf may seem wide; but it is not impassable. One part, the last part, of a process which surmounts it is visible. In the eleventh and twelfth centuries the lords, though they have much land in demesne, still reckon the whole or part of what they are to receive from each manor in terms of 'farms'; the king gets a one night's farm from this manor, the convent of Ramsey gets a fortnight's farm from that manor[1104]. But we can conceive how the change begins. The monks are not going to travel, as a king may have travelled, from village to village feasting at the expense of the folk. They are going to live in their monastery; they want a regular supply of victuals brought to them. They must have an overseer in the village, one who will look to it that the bread and beer are sent off punctually and are good. In the village over which they already have a superiority they acquire a manse of their very own, a _mansus indominicatus_ as their foreign brethren would call it. When once they are thus established in the village, piety and other-worldliness will do much towards increasing their demesne and strengthening their position[1105].

[The church and the peasants.]

We have argued above that in the first instance it was not by means of the petty gifts of private persons that the churches amassed their wide territories. The starting point is the alienation of a royal superiority. Still there can be little doubt that the small folk were just as careful of their souls as were their rulers. They make gifts to the church. Moreover, the gift is likely to create a dependent tenure. They want to give, and yet they want to keep, for their land is their livelihood. They surrender the land to the church: but then they take it back again as a life-long loan. Thus the church has no great difficulty about getting demesne. But further, it gets dependent tenants and a dependent tenure is established. Like enough on the death of the donor his heirs will be suffered to hold what their ancestor held. Very possibly the church will be glad to make a compromise, for it may be doubtful whether these _donationes post obitum_[1106], or these gifts with reservation of an usufruct, can be defended against one, who, not having the fear of God before his eyes, will make a determined attack upon them. Gradually the church becomes more and more interested in the husbandry of the village. It receives gifts; it makes loans; it substitutes labour services to be done on its demesne lands for the old _feorm_ of provender. It is rash to draw inferences from the fragmentary and obscure laws of Ine; but one of them certainly suggests that, at least in some district of Wessex, this process was going on rapidly at the end of the seventh century, so rapidly and so oppressively that the king had to step in to protect the smaller folk. The man who has taken a yard of land at a rent is being compelled not only to pay but also to labour. This, says the king, he need not do unless he is provided with a house[1107].

[Growth of the manorial system.]

Now we are far from saying that the manorial system of rural economy is thus invented. From the time of the Teutonic conquest of England onwards there may have been servile villages, Roman villas with slaves and _coloni_ cultivating the owner's demesne, which had passed bodily to a new master. We have no evidence that is capable of disproving or of proving this. What we think more probable is that in those tracts where true villages (nucleated villages, as we have before now called them[1108]) were not formed, the conquerors fitted themselves into an agrarian scheme drawn for them by the Britons, and that in the small scattered hamlets which existed in these tracts there was all along a great deal of slavery[1109]. But, at any rate, the church was a cosmopolitan institution. Many a prelate of the ninth and tenth centuries, Bishop Oswald for one, must have known well enough how the foreign monasteries managed their lands, and, whatever controversies may rage round questions of remoter history, there can be no doubt that by this time the rural economy of the church estates in France was in substance that which we know as manorial. Foreign precedents in this as in other matters may have done a great work in England[1110]. All that we are here concerned to show is that there were forces at work which were capable of transmuting a village full of free landholders into a manor full of villeins.

[Church-scot and tithe.]

Besides the rights transferred to it by the king, the church would have other rights at its command which it could employ for the subjection--we use the word in no bad sense--of the peasantry. By the law of God it might claim first-fruits and tenths. The payment known as _ciric-sceat_, church-scot, is a very obscure matter[1111]. Certainly in laws of the tenth century it seems to be put before us as a general tax or rate, due from all lands, and not merely from those lands over which a church has the lordship. On the other hand, both in earlier and in later documents it seems to have a much less general character. In some of the earlier it looks like a due, we may even say a rent (_ecclesiasticus census_) paid to a church out of its own lands, while in the later documents, for example in Domesday Book, it appears sporadically and looks like a heavy burden on some lands, a light burden on others. The evidence suggests that the church had attempted and on the whole had failed, despite the help of kings and laws, to make this impost general. That in some districts it was a serious incumbrance we may be sure. On those estates of the church of Worcester to which we have often referred, every hide was bound to pay upon St. Martin's day one horse-load (_summa_) of the best corn that grew upon it. He who did not pay upon the appointed day incurred the outrageous penalty of paying twelve-fold, and in addition to this a fine was inflicted[1112]. If the bishop often insisted on the letter of this severe rule, he must have reduced many a free ceorl to beggary. It is by no means certain that the duty of paying tithe has not a somewhat similar history. Though in this case the impost became a general burden incumbent on all lands, it may have been a duty of perfect obligation for the subjects of the churches, while as yet for the mass of other landowners it was but a religious duty or even a counsel of perfection. At any rate, this subtraction of a tenth of the gross produce of the earth is no light thing: it is quite capable of debasing many men from landownership to dependent tenancy.

[Jurisdictional rights of the lord.]

Another potent instrument for the subjection of the free landowners would be the jurisdictional rights which passed from the king to the churches and the thegns. At first this transfer would appear as a small matter. The president of a court of free men is changed:--that is all. Where the king's reeve sat, the bishop or the bishop's reeve now sits; fines which went to the royal hoard now go to the minster; but a moot of free men still administers folk-right to the justiciables of the church. However, in course of time the change will have important effects. In the first place, it helps to bind up suit of court with the tenure of land. The suitor goes to the bishop's court because he holds land of which the bishop is the lord. If, as will often be the case, he wishes to escape from the burdensome duty, he will pay an annual sum in lieu thereof, and here is a new rent. Then again all the affairs of the territory are now periodically brought under the bishop's eye; he knows, or his reeves know, all about every one's business and they have countless opportunities of granting favours and therefore of driving bargains. Moreover it is by no means unlikely that the lord will now have something to say about the transfer of land, for it is by no means unlikely that conveyances will be made in court, and that the rod or _festuca_ which serves as a symbol of possession will be handed by the seller to the reeve and by the reeve to the purchaser. We need not regard the conveyance in court as a relic of a time when a village community would have had a word to say if any of its members proposed to assign his share to an outsider. There are many reasons for conveying land in court. We get witnesses there, and no mere mortal witnesses but the testimony of a court which does not die. Then, again, there may be the claims of expectant heirs to be precluded and perhaps they can be precluded by a decree of the court. The seller's kinsfolk can be ordered to assert their rights within some limited time or else to hold their peace for ever after, so that the purchaser will hold the land under the court's ban[1113]. And thus the rod passes through the hands of the president. But 'nothing for nothing' is a good medieval rule. The lord will take a small fine for this _land-cóp_, this sale of land, and soon it may seem that the purchaser acquires his title to the land rather from the lord than from the vendor[1114].

[The lord and his man's taxes.]

Yet another turn is given to the screw, if we may so speak, when the state and the church begin to hold the lord answerable for taxes which in the last resort should be paid by the tenant[1115]. This, when we call to mind the huge weight of the danegeld, will appear as a matter of the utmost importance. Before the end of the tenth century--this is the picture that we draw for ourselves--large masses of free peasants were in sore straits and were in many ways subject to their lords. Many of them were really holding their tenements by a more or less precarious tenure. They had taken 'loans' from their lord and become bound to pay rents and work continuously on his inland. Others of them may have had ancient ancestral titles which could have been traced back to free settlers and free conquerors; but for centuries past a lord had wielded rights over their land. The king's _feorm_ had become the lord's _gafol_, and this, supplemented by church-scot and by tithes, may have been turned into _gafol_ and week-work. The time came for a new and heavy tax. This was a crushing burden, and even had the geld been collected from the small folk it would have had the effect of converting many of them from landowners into landborrowers[1116]. But a worse fate befell them. They were so poor that the state could no longer deal with them; it dealt with their lord; he paid for their land. It follows that in the eye of the state their land is his land. Less and less will the national courts and the folk-law recognize their titles; the lord 'defends' this land against all the claims of the state; therefore the state regards it as his. Hence what seems the primary distinction drawn by Domesday Book--that between the soke-man and the _villanus_. The _villanus_ is not rated to the land-tax. Some men are not rated to the geld because they have but precarious titles; other men have precarious titles because they are not rated to the geld. A wide and a legally definable class is formed of men who hold land and who yet are fast losing the warranty of national law. When once the country is full of lords with sake and soke, a very small change, a very small exhibition of indifference on the part of the state, will deprive the peasants of this warranty and condemn them to hold, not by the law of the land, but by the custom of their lord's court.

[Depression of the free ceorl.]

To this depth of degradation the great mass of the English peasants in the southern and western counties--the _villani_, _bordarii_, _cotarii_ of Domesday Book--may perhaps have come before the Norman Conquest. There may have been no courts which would recognize their titles to their land, except the courts of their lords. We are by no means certain that even this was so; but they must fall deeper yet before they will be the 'serf-villeins' of the thirteenth century.

[The slaves.]

However, the conditions which would facilitate such a farther fall had long been prepared, for slavery had been losing some of its harshest features. Of this process we have said something elsewhere[1117]. What the church did for the slave may have been wisely and was humanely done; but what it did for the slave was done to the detriment of the poorer classes of free men. By insisting that the slave has a soul to be saved, that he can be sinned against and can sin, that his marriage is a sacrament, we obliterate the line between person and thing. On the other hand, in the submission of one person to the will of another, a submission which within wide limits is utter and abject, the church saw no harm. Villeinage and monasticism are not quite independent phenomena; even a lawyer could see the analogy between the two[1118]. And a touch of mysticism dignifies slavery:--the bishop of Rome is the serf of the serfs of God; an earl held land of Westminster Abbey 'like a _theow_[1119].' One of the surest facts that we know of the England of Cnut's time is that the great folk were confounding their free men with their theowmen and that the king forbad them to do this. We see that one of the main lines which has separated the rightless slave from the free ceorl is disappearing, for the lord, as suits his interest best, will treat the same man now as free and now as bond[1120].

[Growth of manors from below.]

We might here speak of the numerous causes for which in a lawful fashion a free man might be reduced into slavery, and were we to do so, should have to notice the criminal law with its extremely heavy tariff of _wer_ and _wite_ and _bót_. But of this enough for the time has been said elsewhere[1121], and there are many sides of English history at which we can not even glance. However, lest we should be charged with a grave omission, we must explain that the processes which have hitherto come under our notice are far from being in our eyes the only processes that tended towards the creation of manors. We have been thinking of the manors as descending from above (if we may so speak) rather than as growing up from below. The alienation of royal rights over villages and villagers has been our starting point, and it is to this quarter that we are inclined to look for the main source of seignorial power. But, no doubt, within those villages which had no lords--and plenty of such villages there were in 1065--forces were at work which made in the direction of manorialism. They are obscure, for they play among small men whose doings are not recorded. But we have every reason to suppose that in the first half of the eleventh century a fortunate ceorl had many opportunities of amassing land and of thriving at the expense of his thriftless or unlucky neighbours. Probably the ordinary villager was seldom far removed from insolvency: that is to say, one raid of freebooters, one murrain, two or three bad seasons, would rob him of his precious oxen and make him beggar or borrower. The great class of _bordarii_ who in the east of England are subjected to the sokemen has probably been recruited in this fashion[1122]. And so we may see in Cambridgeshire that a man will sometimes have half a hide in one village, a virgate in another, two-thirds of a virgate in a third. He is 'thriving to thegn-right.' Then, again, some prelate or some earl will perhaps obtain the commendation of all the villagers, and his hold over the village will be tightened by a grant of sake and soke, though, if we may draw inferences from Cambridgeshire, this seems to have happened rarely, for the sokemen of a village have often shown a marvellous disagreement among themselves in their selection of lords, and seem to have chosen light-heartedly between the house of Godwin and the house of Leofric as if they were but voting for the yellows or the blues. We fully admit that these forces were doing an important work; but they were doing it slowly and it was not nearly achieved when the Normans came. Nor was it neat work. It tended to produce not the true and compact manerio-villar arrangement, but those loose, dissipated manors which we see sprawling awkwardly over the common fields of the Cambridgeshire townships[1123].

[Sidenote: Theories which connect the English manor with the Roman villa.]

We have been endeavouring to show that the legal, social and economic structure revealed to us by Domesday Book can be accounted for, even though we believe that in the seventh century there was in England a large mass of free landowning ceorls and that many villages were peopled at that time and at later times chiefly by free landowning ceorls and their slaves. We have now to examine the evidence that is supposed to point to a contrary conclusion and to connect the English manor of the eleventh century with the Roman villa of the fifth. Two questions should be distinguished from each other--(1) Have we any proof that during those six centuries, especially during the first three of them, the type of rural economy which we know as 'manorial' was prevalent in England? (2) Have we any proof that the tillers of the soil were for the more part slaves or unfree men? We will move backwards from Domesday Book.

[The _Rectitudines_.]

In the first place reliance has been placed on the document known as _Rectitudines Singularum Personarum_[1124]. Of the origin of this we know nothing; we can not say for certain that it is many years older than the Norman Conquest. Apparently it is the statement of one who is concerned in the management of great estates and is desirous of imparting his knowledge to others. It first sets forth the right of the thegn. He is worthy of the right given to him by his book. He must do three things in respect of his land, namely, fyrdfare, burh-bote and bridge-work. From many lands however 'a more ample landright arises at the king's ban': that is to say, the thegn is subject to other burdens, such as making a deer-hedge at the king's hám, providing warships[1125] and sea-ward and head-ward and fyrd-ward, and almsfee and church-scot and many other things. Then we hear of the right of the _geneat_. It varies from place to place. In some places he must pay rent (_land-gafol_) and grass-swine yearly, and ride and carry and lead loads, work and support his lord[1126], and reap and mow and hew the deer-hedge and keep it up, build and hedge the _burh_ and make new roads for the _tún_, pay church-scot and almsfee, keep head-ward and horse-ward, go errands far and near wherever he is directed. Next we hear of the cottier's services. He works one day a week and three days in harvest-time. He ought not to pay rent. He ought to have five acres more or less. He pays hearth-penny on Holy Thursday as every free man should. He 'defends' or 'acquits' his lord's inland when there is a summons for sea-ward or for the king's deer-hedge or the like, as befits him, and pays church-scot at Martinmas. Then we have a long statement as to the services of the _gebúr_. In some places they are heavy, in others light. On some land he must work two days a week and three days at harvest by way of week-work. Besides this there is rent to be paid in money and kind. There is ploughing to be done and there are boon-works. He has to feed dogs and find bread for the swine-herd. His beasts must lie[1127] in his lord's fold from Martinmas to Easter. On the land where this custom prevails the _gebúr_ receives by way of outfit two oxen and one cow and six sheep and seven sown acres upon his yard-land. After the first year he is to do his services in full and he is to receive his working tools and the furniture for his house. We then hear of the special duties and rights of the bee-keeper, the swine-herd, the follower, the sower, ox-herd, shepherd, beadle, woodward, hayward and so forth.

[Discussion of the _Rectitudines_.]