Chapter XII: ARRINGTON. A vill of 4 hides (11)

Now, according to our reading of this document, there stand below the thegn, but above the serfs (of whom but few words are said[1128]) three classes of men--there is the _geneat_, there is the _gebúr_ and there is the _cotsetla_. The boor and the cottier are free men; the cottier pays his hearth-penny, that is his Romescot, his Peter's-penny, on Holy Thursday as every free man does; but both boor and cottier do week-work. On the other hand the _geneat_ does no week-work. He pays a rent, he pays a grass-swine (that is to say he gives a pig or pigs in return for his pasture rights), he rides, he carries, he goes errands, he discharges the forinsec service due from the manor, and he is under a general obligation to do whatever his lord commands. He bears a name which has originally been an honourable name; he is his lord's 'fellow[1129].' His services strikingly resemble those which St. Oswald exacted from his _ministri_, his _equites_, his _milites_[1130]. Almost every word that is said of the _geneat_ is true of those very substantial persons who took land-loans from the church of Worcester. The _geneat_ (who becomes a _villanus_ in the Latin version of our document that was made by a Norman clerk of Henry I.'s reign) is a riding-man, radman, radcniht, with a horse, a very different being from the _villanus_ of the thirteenth century[1131]. On the other hand, in the _gebúr_ of this document we may see the _burus_, who is also the _colibertus_ of Domesday Book[1132], and he certainly is in a very dependent position, for his lord provides him with cattle, with instruments of husbandry, even with the scanty furniture of his house. We dare not indeed argue from this text that the _villanus_ of Domesday Book does not owe week-work, for the writer who rendered _geneat_ by _villanus_ was quite unable to understand many parts of the document that he was translating[1133]; but when we place the _Rectitudines_ by the side of the survey we can hardly avoid the belief that the extremely dependent _gebúr_ of the former is represented, not by the _villanus_, but by the _burus_ or _colibertus_ of the latter. However, over and over again the author of the _Rectitudines_ has protested that customs vary. He will lay down no general rule; he does but know what goes on in certain places[1134].

[The Tidenham case.]

In 956 King Eadwig gave to Bath Abbey thirty manses at Tidenham in Gloucestershire[1135]. A cartulary compiled in the twelfth century contains a copy of his gift, and remote from this it contains a statement of the services due from the men of Tidenham. It is possible, but unlikely, that this statement represents the state of affairs that existed at the moment when the minster received the gift; to all appearance it belongs to a later date[1136]. It begins by stating that at Tidenham there are 30 hides, 9 of inland and 21 'gesettes landes,' that is 9 hides of demesne and 21 hides of land set to tenants. Then after an account of the fisheries, which were of importance, it tells us of the services due from the _geneat_ and from the _gebúr_. The _geneat_ shall work as well on the land as off the land, whichever he is bid, and ride and carry and lead loads and drive droves 'and do many other things.' The _gebúr_ must do week-work, of which some particulars are stated, and he also must pay rent in money and in kind. Here again a well marked line is drawn between the _geneat_ and the _gebúr_. Here again the _geneat_, like the _cniht_ or _minister_ of Oswaldslaw, is under a very general obligation of obedience to his lord; but he is a riding man and there is nothing whatever to show that he is habitually employed in agricultural labour upon his lord's demesne. As to the _gebúr_, he has to work hard enough day by day, and week by week, though of his legal status we are told no word.

[The Stoke case.]

In a Winchester cartulary, 'a cartulary of the lowest possible character,' there stands what purports to be a copy of the charter whereby in the year 900 Edward the Elder gave to the church of Winchester 10 _manentes_ of land 'æt Stoce be Hysseburnan' together with all the men who were thereon at the time of Alfred's death and all the men who were 'æt Hisseburna' at the same period. Edward, we are told, acquired the land 'æt Stoce' in exchange for land 'æt Ceolseldene' and 'æt Sweoresholte [Sparsholt].' At the end of the would-be charter stand the names of its witnesses. Then follows in English (but hardly the English of the year 900) a statement of the services which the ceorls shall do 'to Hysseburnan.' Then follow the boundaries. Then the eschatocol of the charter and the list of witnesses is repeated[1137]. On the face of the copy are three suspicious traits: (1) the modernized language, (2) the repeated eschatocol, (3) the description of the services, for the like is found in no other charter. This is not all. Two other documents in the same cartulary bear on the same transaction. By the first Edward gave to the church of Winchester 50 _manentes_ 'æt Hysseburnan' which he had obtained by an exchange for land 'æt Merchamme[1138].' By the second he gave to the church of Winchester 50 _manentes_ 'ad Hursbourne' and other 10 'ad Stoke[1139].' The more carefully these three documents are examined, the more difficult will the critic find it to acquit the Winchester monks of falsifying their 'books' and improving Edward's gift. Therefore this famous statement about the ceorls' services is not the least suspicious part of a highly suspicious document. It is to this effect:--'From each _hiwisc_ (family or hide), at the autumnal equinox, forty pence and six church _mittan_ of ale and three sesters of loaf-wheat. In their own time they shall plough three acres and sow them with their own seed, and in their own time bring it [the produce of the sown land] to barn. They shall pay three pounds of gafol barley and mow half an acre of gafol-mead in their own time and bring it to the rick; four fothers of split gafol-wood for a shingle-rick in their own time and sixteen yards of gafol-fencing in their own time. And at Easter two ewes with two lambs, but two young sheep may be counted for an old one; and they shall wash and shear sheep in their own time. And every week they shall do what work they are bid, except three weeks, one at Midwinter, one at Easter and the third at the Gang Days.' Here no doubt, as in the account of Tidenham, as in the _Rectitudines_, we see what may fairly be called the manorial economy. The lord has a village; he has demesne land (_inland_) which is cultivated for him by the labour of his tenants; these tenants pay _gafol_ in money or in kind; some of them (the _geneat_ of Tidenham, the _geneat_ of the _Rectitudines_) assist him when called upon to do so; others work steadily from day to day; in many particulars the extent of the work due from them is ascertained; whether they are free men, whether they are bound to the soil, whether the national courts will protect them in their tenure, whether they are slaves, we are not told.

[Inferences from these cases.]

That such an arrangement was common in the eleventh century we know; a solitary instance of it comes to us professedly from the first year of the tenth, and certainly from a cartulary that is full of lies. To draw general inferences from a few such instances would be rash. What should we believe of 'the English village of the eleventh century' if the one village of which we had any knowledge was Orwell in Cambridgeshire[1140]? What should we believe of 'the English village of the thirteenth century' if our only example was a village on the ancient demesne? The traces of a manorial economy that have been discovered in yet remoter times are few, slight and dubious. A passage in the laws of Ine[1141] seems to prove that there were men who had let out small quantities of land, 'a yard or more,' to cultivators at rents and who were wrongfully endeavouring to get from their lessees work as well as _gafol_. The same law may prove the highly probable proposition that some men had taken 'loans' of manses and were paying for them, not only by _gafol_, but by work done on the lord's land. That already in Ine's day there were many free men who were needy and had lords above them, that already the state was beginning to consecrate the relation between lord and man as a security for the peace and a protection against crime is undoubted[1142]. But this does not bring us very near to the Roman _villa_. Nor shall we see a _villa_ wherever the dooms or the land-books make mention of a _hám_ or a _tún_, for the meanest ceorl may have a _tún_ and will probably have a home of his own[1143].

[The _villa_ and the _vicus_.]

It is said that the England of Bede's day was full of _villae_ and that Bede calls the same place now _villa_ and now _vicus_[1144]. But before we enter on any argument about the use of such words, we ought first to remember that neither Bede nor the scribes of the land-books were trained philologists. London is a _villa_[1145], but it is also a _civitas_, _urbs_, _oppidum_, _vicus_, a _wíc_, a _tún_, a _burh_, and a _port_. When we see such words as these used promiscuously we must lay but little stress upon the occurrence of a particular term in a particular case. Suppose for a moment that in England there were many villages full of free landholders: what should they be called in Latin? They should, it is replied, be called _vici_ and they should not be called _villae_, for a _villa_ is an estate. But it is part of the case of those who have used this argument that at the time of the barbarian invasions the Roman world was full of _villae_, so full that every or almost every _vicus_ was situated on and formed part of a _villa_[1146]. We are therefore exacting a good deal from Bede, from a man who learnt his Latin in school, if we require him to be ever mindful of this nice distinction. We are saying to him: 'True it is that a knot of neighbouring houses with the appurtenant lands is habitually called a _villa_; but then this word introduces the notion of ownership; the _villa_ is an unit in a system of property law, and, if your village is not also an estate, a _praedium_, then you should call it _vicus_ and not _villa_.' To this we must add that, while the word _villa_ did not until after the Norman Conquest force its way into English speech, the word _vicus_ became an English word at a very early period[1147]. It became our word _wick_ and it became part of a very large number of place-names[1148]. The Domesday surveyors found _herdwicks_ and _berewicks_ in many parts of the country[1149]. Moreover we can see that in the Latin documents _villa_ is used in the loosest manner. London is a _villa_; but a single house, a single 'haw,' in the city of Canterbury or the city of Rochester is a _villa_[1150].

[Notices of manors in the charters.]

If we carefully attend to the wording of the land-books, we shall find the manorial economy far more visible in the later than in the earlier of them. The Confessor gives to Westminster 'ða cotlife Perscore and Dorhurste' with all their lands and all their berewicks[1151]. He gives the cotlif Eversley and all things of right belonging thereto, with church and mill, with wood and field, with meadow and heath, with water and with moor[1152]. From 998 we have a gift of a 'heafod-botl,' a capital mansion, we may say, and its appurtenances[1153]. In earlier times we may sometimes find that the subject matter of the royal gift is spoken of as forming a single unit; it is a _villa_, or it is a _vicus_. But rarely is the thing that is given called a _villa_ except when the thing that is given is just a single hide[1154]. If a charter freely disposes of several _villae_, meaning thereby villages, we shall probably find some other reasons for assigning that charter, whatever date it may bear, to the eleventh, the twelfth or a yet later century[1155]. Sometimes in old books the king will say that he is giving a _vicus_, a _vicus_ of five or eight or ten _tributarii_[1156]. Much more frequently he will not speak thus; he will not speak as though the subject matter of his gift had a physical unity and individuality. 'I give,' he will say, 'so many _manentes_, _tributarii_, or _casati_ in the place known as _X_,' or 'I give a certain part of my land, to wit, that of so many _manentes_, _tributarii_, or _casati_ at the spot which men call _Y_.' Such language does not suggest that the manses thus given are subservient to one dominant and dominical manse or manor; it is very unlike the language of the twelfth century[1157]. Such words as _fundus_ and _praedium_ are conspicuously absent, and _ager_ usually means but a small piece of land, an acre. Foreign precedents would have suggested that when an estate was to be conveyed it should be conveyed _cum servis et ancillis_, or _cum mancipiis et accolabus_; such clauses are rare in our English land-books[1158].

[The _mansa_ and the _manens_.]

But, it will be said, at all events the king is giving persons, men, as well as land; he is giving _manentes_, _casati_, _tributarii_. What is more these are foreign words and they describe the 'semi-servile' occupants of the soil. Now it is true that sometimes he gives _manentes_, _casati_, _tributarii_, though more often he gives either so many manses (_mansas_), or 'the land of so many _manentes_, _casati_, _tributarii_,' while in Kent he gives plough-lands or sullungs. But we think it plain that in England these Latin words were used simply to describe the extent, or rather the rateable extent, of land, without much reference to the number or the quality of its occupants. The _terra unius manentis_, even the _unus casatus_ when that is the subject of a conveyance, is like Bede's _terra unius familiae_, the unit known to Englishmen as the _hiwisc_, or _hide_[1159]. Hence it is that reference is so often made to repute and estimation. 'I give,' says Egbert, 'a certain portion of land to the amount, as I estimate, of five _casati_,' or (it may be) 'of twenty _manentes_[1160].' Nothing can be easier than to count whether there be four, five, or six 'semi-servile' households on a given piece of land. Far easier would it be to do this than to do what is habitually done, namely, to set forth the boundaries of the land with laborious precision. But there is already an element of estimation, of appreciation, in these units. Already they are units in a system of taxation. Hence also it is that so very frequently what the king gives is just exactly five, or some multiple of five, of these units[1161]. Rating is a rough process; five and ten are pleasant numbers.

[The hide.]

But against the argument which would see in every conveyance of 'five _manentes_' or of 'the land of five _casati_' a conveyance of five semi-servile households with their land we have another objection to urge. Here we will state it briefly; a fuller statement would take us far away from our present theme. If the land-books of the churches are to lead up to Domesday Book, the unit conveyed as _terra unius manentis_ (_casati_, _tributarii_) is a hide with some 120 acres of arable land, the land appropriate to a plough-team of eight oxen. Had the semi-servile _manens_ as a general rule 120 arable acres, a plough-team of eight oxen? We do not believe it, and those who have most strongly insisted on the servility or 'semi-servility' of the tillers of the soil, do not believe it. They would give the _gebúr_ but a quarter of a hide and but two beasts of the plough. That being so, it should be common ground that the _terra unius manentis_ (_casati_, _tributarii_) can not be construed as 'the land occupied by one semi-servile tenant.' An explanation of the fact that land is conveyed by reference to units so large as the hide of 120 acres and that these units are spoken of as though each household would normally have one of them must be sought elsewhere; we can not here pause to find it. But in any case these foreign terms should give us little trouble. When he hears such words as _manens_, _casatus_, _tributarius_, the man who has lived in Gaul may hear some undertone of servility or 'semi-servility.' We do not discuss this matter; it may be so. But look at the words themselves, what do they primarily mean? A _manens_ is one who dwells upon land, a _casatus_ is one to whom a _casa_ has been allotted, a _tributarius_ pays _tributum_; the free English landowner pays a _tributum_ to the king[1162]. We must make the best we can of a foreign, an inappropriate tongue, and the best that we make is often very bad, especially when we have a taste for fine writing. And so England is full of villas which are Roman and satraps who, no doubt, are Persian.

[The strip-holding and the villa.]

And whence, we must ask, comes that system of intermixed 'strip-holding' that we find in our English fields? Who laid out those fields? The obvious answer is that they were laid out by men who would sacrifice economy and efficiency at the shrine of equality. Each manse is to have the same number of strips; the strips of one manse must be neither better nor worse than those of its neighbour and therefore must be scattered abroad over the whole territory of the village. That this system was not invented by men who owned large continuous tracts is plain. No such owner would for one moment dream of cutting up his land in this ridiculous fashion, and of reserving for his own manse, not a ring-fenced demesne, but strips lying here and there, 'hide-meal and acre-meal' among the strips of his serfs. That is not the theory. No one supposes that a Roman landowner whose hands were free allowed the soil of his villa to be parcelled out in accordance with this wasteful, cumbrous, barbarous plan. So his hands must not be free; the soil of which he becomes the owner must already be plotted out in strips, and these strips must be so tightly bound up into manses, that he scruples to overturn an existing arrangement, and contents himself with appropriating a few of the manses for his own use and compelling the occupants of the others to labour for him and pay him rents. In this there is nothing impossible; but we have only deferred, not solved the problem. Who laid out our English fields and tied the strips into manses? That this work was done by the Britons before they were brought under the Roman yoke does not seem very probable. Celtic rural economy, whenever it has had a chance of unfettered development, has made for results far other than those that are recorded by the larger half of the map of England. If throughout England the Romans found so tough a system of intermixed manses that, despite all its absurdities, they could not but spare it, then the Britons who dwelt in the land that was to be English were many centuries in advance of the Britons who dwelt in the land that was to be Welsh. To eke out this hypothesis another must be introduced. The Teutonic invaders of Britain must be brought from some manorialized province. So, after all, the model of the English field may have been 'made in Germany.' Somehow or another it was made in South Germany by semi-servile people, whose semi-servility was such a half-and-half affair that they could not be prevented from sacrificing every interest of their lords at the shrine of equality[1163].

[The lords and the strips.]

We are far from saying that wherever there is strip-holding, there liberty and equality have once reigned[1164]. It is very possible that where a barbarian chieftain obtained a ring-fenced allotment of conquered soil, he sometimes divided it into scattered strips which he parcelled out among his unfree dependants. But if he did this, he did it because his only idea of agriculture was derived from a village formed by men who were free and equal. The maintenance of a system of intermixed strip-holding may be due to seignorial power, and a great deal of the rigidity of the agrarian arrangements that we see in the England of the thirteenth century may be due to the same cause. Seignorial power was not, at least in origin, absolute ownership. It had to make the best it could of an existing system. For the lord's purposes that system was at its best when it was rigid and no tenement was partible. But assuredly this plan was not originally invented by great proprietors who were seeking to get the most they could out of their land, their slaves and their capital.

[The ceorl and the slave.]

That we have not been denying the existence of slavery will be plain. Indeed we may strongly suspect that the men who parcelled out our fields were for the more part slave-owners, though slave-owners in a very small way. To say nothing of Welshmen, there was quite enough inter-tribal warfare to supply the ceorl with a captive. But it was not for the sake of slaves or serfs or 'semi-servile' folk that the system of intermixed strips was introduced.

[The condition of the Danelaw.]

Lastly, the theory which would derive the English manor from the Roman _villa_ must face the grave problem presented to it by the account which Domesday Book, when speaking of the Confessor's day, gives of the eastern and northern counties, of a large quarter of all England, and of just that part of England which was populous. We see swarms of men who are free men but who are subject, they and their land, to various modes and degrees of seignorial power. The modes are many, the degrees are gentle. Personal, tenurial, justiciary threads are woven into a web that bewilders us. Here we see the work of commendation, there the work of the land-loan, and there again what comes of grants of sake and soke. We see the formation of manors taking place under our eyes, and as yet the process is by no means perfect. In village after village there is nothing that our economic historians would consent to call a manor. Now, no doubt, the difference between the east and the west is, at least in part, due to Danish invasions and Danish settlements. But how shall we picture to ourselves the action of the Danes? Is it to be supposed that they found the Anglo-Roman manor-villa a prevalent and prosperous institution, that they destroyed it and put something else in its place, put in its place the village of free peasants who could 'go with their land' to what lord they pleased? If so, then we have to face the question why these heathen Danes acted in a manner so different from that in which their predecessors, the heathen Angles and Saxons, had acted. Surely one part of the explanation is that the inswarming barbarians checked the manorializing process that was steadily at work in Wessex and Mercia. We do not say that this is the whole explanation. We have seen how free were many of the Cambridgeshire villages and have little reason to believe that they had been settled by Danes[1165]. The west country is the country to which we shall naturally look for the most abundant traces of the _Wealh theow_. There it is that we find numerous _servi_, and there that we find rather _trevs_ than villages. But also we have hardly a single land-book of early date which deals with any part of the territory that became the Danelaw. Many a book the Danes may have burnt when they sacked the monasteries. They sacked the monasteries, burnt the books and freed the land. But still we may doubt whether the practice of booking lands to the churches had gone far in East Anglia and the adjacent shires when they were once more overwhelmed by barbarism. No doubt in course of time the churches of the east became rich: Ely and St Edmunds, Peterborough and Ramsey, Croyland and Thorney. But, even when supplemented by legend and forgery, their titles to wide territories can seldom be compared for antiquity to the titles that might have been pleaded by the churches of Kent and Wessex and the Severn Valley. Richly endowed churches mean a subjected peasantry. And thus we may say of the Danes that if in a certain sense they freed the districts which they conquered, they in the same sense enslaved the rest of England. Year by year Wessex and Mercia had to strain every nerve in order to repel the pagans, to fit out fleets, build burgs and keep armies always in the field. The peasant must in the end bear the cost of this exhausting struggle. Meanwhile in the north and the east the process that makes manors has been interrupted; it must be begun once more. It was accomplished by men some of whom had Scandinavian blood in their veins, but who were not heathens, not barbarians: it was accomplished by Normans steeped in Frankish feudalism.

FOOTNOTES:

[1101] K. 313 (ii. 110); T. 129; B. ii. 172.

[1102] In many cases the one night's farm is reckoned at £100 or
thereabouts; Round, Feudal England, 112.

[1103] K. 477 (ii. 354); T. 509.

[1104] Vinogradoff, Villainage, 301.

[1105] Even T. R. W. and in a thoroughly manorial county such as
Hampshire we may find a village in which the lord has no
demesne. See e.g. D. B. i. 41 b, Alwarestoch.

[1106] Hist. Eng. Law, ii. 315

[1107] Ine, 67. See Schmid's note.

[1108] See above, p. 15.

[1109] See Meitzen, Siedelung und Agrarwesen der Germanen, ii. 97
ff.

[1110] Stubbs, Const. Hist. i. 223.

[1111] The subject is treated at length by Kemble, Saxons, ii. 490
and App. D, and Schmid, p. 545.

[1112] D. B. i. 174. Compare Ine, 4; Æthelr. VIII. 11; Cnut, I. 10.

[1113] Hist. Eng. Law, ii. 95.

[1114] Æthelred, III. 3; Schmid, App. II. 67 and Schmid, Glossar, s.
v. _land-ceáp_.

[1115] See above, pp. 55, 122, 125.

[1116] See above, p. 6. In a charter of Æthelred, K. 689 (iii. 284),
Abp. Sigeric, the reputed inventor of the danegeld, is
represented as pledging a village of thirty manses in order
that he may pay the money demanded by the pirates. He thus
raises 90 pounds of purest silver and 200 mancuses of purest
gold. If the mancus was the eighth of a pound (Schmid, p.
595) we have 90 pounds of silver and 25 of gold, or in all
perhaps £390. The whole danegeld of Kent under Henry II. was
less than £106. For other transactions of a similar kind, see
Crawford Charters, 76.

[1117] See above, p. 27.

[1118] Hist. Eng. Law, i. p. 416.

[1119] K. 1327 (iv. 190): 'swa full and swa forð swa Sihtric eorll
of ðan ministre þeowlic it heold.'

[1120] Cnut, II. 20.

[1121] Hist. Eng. Law, ii. p. 458.

[1122] Chron. Petrob. 166: 'Sunt etiam in eadem scira 15 undersetes
qui nullum servicium faciunt nisi husbondis in quorum terra
sedent.'

[1123] See above, p. 136.

[1124] Schmid, App. III. p. 370; Seebohm, English Village Community,
p. 129. See also Liebermann's article in Anglia, ix. 251,
where the _Gerefa_, which seems to be a second part of this
document, is printed.

[1125] We here adopt Schmid's conjecture: 'and scorp to friðscipe
[_corr._ fyrdscipe].'

[1126] Ibid.: 'and hlaford feormian,' and supply a feorm (firma) for
his lord.

[1127] The text says that he must lie at his lord's fold; but
probably it refers to the _soca faldae_. See above, p. 76.

[1128] Of the serfs we hear (c. 8, 9) what they are to receive, but
not what they ought to do; their services are unlimited.

[1129] Schmid, p. 596: Maurer, K. U. ii. 405.

[1130] See above, p. 305, also Maurer, K. U. ii. 406.

[1131] He is to 'work' for his lord; but then see how Oswald speaks
of his knights and radmen: 'semper illius ... dominatui et
voluntati ... cum omni humilitate et subiectione subditi
fiant secundum ipsius voluntatem.' Cf. D. B. i. 172 b:
'deserviebat sicut episcopus volebat' ... 'tenuit ad
servitium quod episcopus voluit.' The translator who turned
him into a villanus was capable of turning the king's
_geneat_ of Ine's law into a _colonus_, a _colonus_ with a
wergild of 1200 shillings! See Schmid, p. 29.

[1132] See above, p. 36.

[1133] See e.g. cap. i., where it is pretty clear that he can not
translate _scorp_. So in the Latin version of Edgar II. c. 1
he renders _geneatland_ by _terra villanorum_. But about such
a matter as this the testimony of the Quadripartitus is of no
value. See Liebermann, Gerefa, Anglia, ix. 258.

[1134] Mr Seebohm, p. 130, commits what seems to me the mistake of
saying that the cottiers and boors are 'various classes of
geneats.' To my thinking a great contrast is drawn between
the _geneat_ and the _gebúr_ both in this document and in the
account of Tidenham. So in Edgar II. c. 1 the contrast is
between land which the great man has in hand and land which
he has let to his 'fellows,' his _equites_ and _ministri_.
See Konrad Maurer, K. U. ii. 405-6. Such words as _gebúr_ and
_burus_ are obviously very loose words and it is likely that
many a man who answered to the description of the _gebúr_
given by the Rectitudines appears in Domesday Book, which in
general cares only about fiscal distinctions, as a _villanus_
or _bordarius_. But we have clear proof that the surveyors
saw a class of _buri_ ( = _coliberti_) who were distinct from
the ordinary _villani_. See above, p. 36.

[1135] K. 452 (ii. 327). See also Two Chartularies of Bath Abbey
(Somerset Record Society), pp. 5, 18, 19.

[1136] K. iii. 449; E. 375: Seebohm, 148. Both documents come from
MS. C.C.C. Camb. cxi. The conveyance is on f. 57, the
statement of services on f. 73. The statement of services
immediately precedes the lease of Tidenham to Stigand, K. 822
(iv. 171). Thus we have really better reason for referring
that statement to the very eve of the Norman Conquest than to
956. See also Kemble, Saxons, i. 321, and Maurer, K. U. ii.
406.

[1137] K. 1077 (v. 146; iv. 306); T. 143; Kemble, Saxons, i. 319;
Seebohm, 160. But the form of the instrument as given in the
Codex Wintoniensis is best seen in B. ii. 240. We have quoted
above the estimate of this Codex formed by Mr Haddan and Dr
Stubbs (Councils, iii. 638).

[1138] B. ii. 238.

[1139] B. ii. 239.

[1140] See above, p. 129.

[1141] Ine, 67.

[1142] Ine, 39. The man who leaves his lord (not his lord's land,
but his lord) without license, or steals himself away into
another shire, is to pay 60 shillings (no trivial sum) to his
lord.

[1143] Surely the law, Hloth. and Ead. c. 15, which begins 'If a man
receive a guest three nights in his own home (an his agenum
hame)' is not directed only against the lords of manors. See
Meitzen, Siedelung und Agrarwesen, ii. 123.

[1144] Ashley, Translation of Fustel de Coulanges, Origin of
Property, p. xvi.

[1145] K. 220 (i. 280): 'ad regalem villam Lundoniae perveniens.'

[1146] Fustel de Coulanges, L'Alleu, ch. vi. There is much to be
said on the other side; see Flach, Les origines de l'ancienne
France, ii. pp. 47-62. As to the _villa_ of the Lex Salica,
see Blumenstok, Entstehung des deutschen
Immobiliareigenthums, i. 219 ff.

[1147] The suggestion that _villa_ appears in some of our
place-names as the termination _-well_ runs counter, so Mr
Stevenson tells me, to rules of phonology.

[1148] See Bosworth's Dictionary; Kemble, Cod. Dipl. iii. p. xli. In
the translation of St. Mark viii. 23, 26 both _wíc_ and _tun_
are used as equivalents for _vicus_:--'eduxit eum extra vicum
... et si in vicum introieris' = 'and lædde hine butan þa wic
... and ðeah þu on tun ga.' Even in France the word _vicus_
becomes part of numerous place-names: see Flach, op. cit. i.
p. 53.

[1149] There is something curious about the use made of _wick_. It
is often used to distinguish a hamlet or small cluster of
houses separate from the main village. Thus in the parish of
_X_ we shall find _X-wick_. The _berewicks_ and _herdwicks_
of D. B. (see above, p. 114) seem to be small clusters. On
the other hand London is a _wíc_; Hloth. and Ead. 16.

[1150] K. 1041 (v. 88): 'in Dorobernia etiam civitate unam villam
donabo ad quam pertinet quinque iugera terrae et duo prata.'
K. 276 (ii. 57): 'dabo unam villam, quod nos Saxonice an haga
dicimus.' K. 259 (ii. 26): 'villam unam ab orientale parte
muri Doroverniae civitatis.'

[1151] K. 829 (iv. 191).

[1152] K. 845 (iv. 204). In a passage which has been interpolated
into one copy of the A.-S. Chronicle (Thorpe, p. 220) we read
'And se biscop ... bohte þa feala cotlif æt se king.'

[1153] Crawford Charters, pp. 22, 125; K. 1293 (vi. 138).

[1154] Thus K. 109 (i. 133): 'villam unam ... quae iam ad Quenegatum
urbis Dorovernensis in foro posita est.' It is not denied
that in some quite early charters a king gives a _villa_ or
_villula_, e.g. K. 209 (i. 264): 'Heallingan cum villulis
suis'; see also K. 140 (i. 169), in which _villula_ and
_viculus_ are used as synonyms.

[1155] A good example is that abominable forgery K. 984 (v. 2),
Wulfhere's charter for Peterborough.

[1156] For example, K. 117-8-20 (i. 144-7).

[1157] One of the earliest instances of what looks like manorial
organization will be found in K. 201 (i. 253); B. i. 485. In
814 Cenwulf gives to the Abp. of Canterbury a plough-land:
'et hoc aratrum cum omnibus utensilibus bonis ad mansionem in
grafon æa [Graveney] æternaliter concessum est.'

[1158] A.D. 880, K. 311 (ii. 107): 'Insuper etiam huic donationi in
augmentum sex homines, qui prius pertinebant ad villam regiam
in Beonsinctune, cum omni prole stirpeque eorum ad eandem
conscripsimus aecclesiam.' A.D. 889, K. 315 (ii. 117): 'cum
hominibus ad illam pertinentibus.' A.D. 962, K. 1239 (vi.
49): 'vineam ... cum vinitoribus.' In late documents penned
in English it is common to convey land 'with meat and with
man.' Instances are collected in Crawford Charters, 127.

[1159] Therefore we sometimes meet with the form _cassata_, while
_manens_ is treated as a feminine word; K. i. 301; B. i. 573:
'has x. manentes ... dividendas dimisit.' So Asser (ed.
Camden, p. 4) says that Æthelwulf ordered that one poor man
should be fed and clothed 'per omnem hereditariam terram suam
semper in x. manentibus.'

[1160] K. 1033 (v. 73): 'aliquam portionem terrae ... in modum
videlicet ut autumo v. cassatorum.' K. 1308 (v. 83): 'aliquam
portionem terrae ... in modum videlicet ut autumo xx.
manentium.' K. 565 (iii. 64): 'quoddam ruris clima sub
aestimatione decem cassatorum.' K. 573 (iii. 87): 'ruris
quandam particulam, denis ab accolis aestimatam
mansiunculis.' K. 602 (iii. 146): 'quoddam rus x. videlicet
mansarum quantitate taxatum.'

[1161] Let us open the Cod. Dipl. at the beginning of Edmund's reign
(ii. 218). The number of manses given in twenty-five
consecutive charters is as follows: 10, 20, 10, 10, 9, 10,
15, 7, 8, 20, 10, 3, 5, 20, 30, 3, 6, 5, 3, 7, 20, 20, 5, 8,
5.

[1162] It seems almost necessary to protest that to-day our
landowners are not semi-servile occupants of the soil, though
they pay land taxes, house taxes, income taxes and rates
innumerable.

[1163] I can not but think that Fustel de Coulanges knew his
business thoroughly well, and that if the German is to be
taught his proper and insignificant place, the less that is
said of intermixed 'strip-holding' the better, though to
ignore it utterly was, even in France, a bold course.

[1164] Meitzen, op. cit. i. 431-41.

[1165] See above, p. 139.

§ 6. _The Village Community._

[The village community.]

We have argued for an England in which there were many free villages. It remains for us to say a word of the doctrines which would fill England with free landowning village communities. Here we enter a misty region where arguments suggested by what are thought to be 'survivals' and inferences drawn from other climes or other ages take the place of documents. We are among guesses and little has as yet been proved.

[The popular theory.]

A popular theory teaches us that land belonged to communities before it belonged to individuals. This theory has the great merit of being vague and elastic; but, as it seems to think itself precise, and probably owes some of its popularity to its pretence of precision, we feel it our duty to point out to it its real merit, its vague elasticity.

[Co-ownership and ownership by corporations.]

It apparently attributes the ownership of land to communities. It contrasts communities with individuals. In so doing it seems to hint, and yet to be afraid of saying, that land was owned by corporations before it was owned by men. The hesitation we can understand. No one who has paid any attention to the history of law is likely to maintain with a grave face that the ownership of land was attributed to fictitious persons before it was attributed to men. But if we abandon ownership by corporations and place in its stead co-ownership, then we seem to be making an unfortunate use of words if we say that land belonged to communities before it belonged to individuals. Co-ownership is ownership by individuals. When at the present day an English landowner dies and his land descends to his ten daughters, it is owned by individuals, by ten individuals. If each of these ten ladies died intestate leaving ten daughters, the land would still be owned by individuals, by a hundred individuals.

['Communities' as owners.]

The distinction that modern law draws between the landowning corporation and the group of co-owners is as sharp as any distinction can be. It will be daily brought home to any one who takes an active share in the management of the affairs of a corporation, for example, a small college which has a master, six fellows and eight scholars. A conveyance of land to the college and a conveyance of land to these fifteen men would have utterly different effects. A corporation may be deep in debt while none of its members owes a farthing. Now we may suspect, and not without warrant, that in a remote past these two very different notions, namely that of land owned by a corporation and that of land owned by a group of co-owners were intimately blent in some much vaguer notion that was neither exactly the one nor exactly the other. We may suspect that could we examine the conduct of certain men who lived long ago we should be sorely puzzled to say whether they were behaving as the co-owners of a tract of land or as the members of a corporation which was its owner. But to fashion for ourselves any clear and stable notion of a _tertium quid_ that is neither corporate ownership nor co-ownership, but partly the one and partly the other, seems impossible[1166]. Therefore if, in accordance with the popular theory, we attribute the ownership of lands to 'communities,' we ought to add that we do not attribute it to corporations and that we are fully aware that co-ownership can not be sharply contrasted with ownership by individuals.

[Possession and ownership.]

Also since we are apt to fall into the trick of talking about possession when we mean ownership or proprietary right, we need not perhaps ask pardon for the remark that land owned by a group of three joint tenants may be possessed in many different ways. The three may be jointly possessing the whole; each may be severally possessing a physically divided third; the whole may be possessed by one of them or by some fourth person; the possession may be rightful or wrongful.

But there is a graver question that must be raised. When we say that land belonged to communities before it belonged to individuals, are we really speaking of ownership or of something else?

[Ownership and governmental power.]

At the present day no two legal ideas seem more distinct from each other than that of governmental power and that of proprietary right. The 'sovereign' of Great Britain (be the sovereignty where it may) is not the owner of Great Britain, and if we still say that all land is 'held of' the king, we know that the abolition of this antique dogma, this _caput mortuum_, might be easily accomplished without any perceptible revolution in the practical rules of English law. A landowner in the United States does not 'hold of' the State or the people or the government of the State. The 'eminent domain' of the State is neither ownership nor any mode of ownership. Further, we conceive that the sovereign person or sovereign body can, without claiming any ownership in the soil, place many restrictions on the use that an owner may make of his land. A law may prohibit owners from building on certain lands: those lands are still their lands. Again, the supposed law may be not a negative but a positive rule; it may require that the owners of certain lands shall build upon them, or shall till them, or shall keep them as pasture[1167]: still neither state nor sovereign will be owner of those lands or have any proprietary interest in them. Our law may subject certain lands to a land-tax to be paid to the state in money, or to a tithe to be paid to the church in kind, but the state will not and the church will not be part-owner of those lands. Our state may habitually expropriate owners, may take their lands from them because they are felons or because their lands are wanted for the construction of railways. We may conceive it expropriating owners who have done no wrong and yet are to have no compensation; but until the expropriation takes place the state does not own the land. As with land, so with chattels. The owner of a cart may find that it is impressed for the purpose of military transport[1168] and yet the cart is his and not the state's.

[Ownership and the powers of subordinate governors.]

Similar powers may be exercised by persons or bodies that are not sovereign, for example, by the governor of a province, by a county council or a municipal corporation. Suppose that the owners of land situate within a certain borough are prohibited by a by-law from placing on their soil any buildings the plans of which have not been approved by the town council. Carry this supposition further:--suppose that the town council is a 'folk-moot' which every inhabitant of the borough may attend. Still, according to our thinking, there would here be no communal ownership and no division of ownership between individuals and a corporation. If we thought it well to say that in such a case the community would have some kind of 'eminent domain' over the land of individuals, we should have to add that this kind of eminent domain was not a proprietary right, but merely governmental power, a power of making general rules and issuing particular commands. Nor would the case be altered if the expressed object of such rules and commands was the interest, it may even be the pecuniary interest, of the men of the town. The erection of buildings may be controlled in order that the town may be wholesome and sightly, or we may conceive that landowners in the suburbs are compelled to keep their land as market-gardens or as dairy-forms in order that vegetables or milk may be cheap:--for all this the town council or community of townsfolk would have no property in the land.

[Evolution of sovereignty and ownership.]

But though this be so, we can not doubt that could we trace back these ideas to their origin, we should come to a time when they were hardly distinct from each other. The language of our medieval law tells us that this is so. The one word _dominium_ has to cover both proprietary rights and many kinds of political power; it stands for ownership, lordship, sovereignty, suzerainty. The power that Edward I. wields over all England, the power that he claims over all Scotland, all Gascony, the right that he has in his palace of Westminster, the right that he has in his war-horse, all these are but modes of _dominium_. Then we imagine a barbarous horde invading a country, putting its inhabitants to the sword and defending it against all comers. Doubtless in some sort the land is its land. But in what sort? In the sort in which Queen Victoria or the British nation has lands in every quarter of the globe, the sort in which all France belongs to the French Republic, or the sort in which Blackacre is the land of John Styles? Have the barbarians themselves answered this question? Have they asked it[1169]?

[Communal ownership as a stage.]

Now if we are going to confuse sovereignty with ownership, _imperium_ with _dominium_, political power with proprietary right, why then let our socialists and collectivists cease their striving and sing _Te Deum_. Already their ideal must be attained. Every inch of the soil of France, to name one instance, 'belongs' to the French Republic. But, if we would not be guilty of this confusion, then we must be very careful before we assent to the proposition that in the normal course of history (if indeed in such a context history can be said to have a normal course) the ownership of land by communities appears before the ownership of land by individuals. Even if we put aside all such criticisms as would be legal quibbles in the eyes of impatient theorists, and refuse to say whether the 'community' is a mass of men, an ideal person or _tertium quid_, we still are likely to find that the anthropologists will be against us. We are now told by one of the acutest of explorers that, if we leave out of account as no true case of ownership the sort of inchoate sovereignty which an independent tribe of hunters may exercise over a piece of the world's surface, 'ownership of land by individuals' is to be found at a much lower grade in the scale of civilization than that at which 'communal ownership' makes its first appearance[1170]. Communal ownership, it is said, is not seen until that stage is reached at which the power of the chieftain is already a considerable force and the work of centralization is progressing. With these inductions we do not meddle; but if the anthropologist will concede to the historian that he need not start from communalism as from a necessary and primitive _datum_, a large room will be open for our guesses when we speculate about the doings of a race of barbarians who have come into contact with Roman ideas. Even had our anthropologists at their command materials that would justify them in prescribing a normal programme for the human race and in decreeing that every independent portion of mankind must, if it is to move at all, move through one fated series of stages which may be designated as Stage _A_, Stage _B_, Stage _C_ and so forth, we still should have to face the fact that the rapidly progressive groups have been just those which have not been independent, which have not worked out their own salvation, but have appropriated alien ideas and have thus been enabled, for anything that we can tell, to leap from Stage _A_ to Stage _X_ without passing through any intermediate stages. Our Anglo-Saxon ancestors did not arrive at the alphabet, or at the Nicene Creed, by traversing a long series of 'stages'; they leapt to the one and to the other.

[A normal sequence of stages.]

But in truth we are learning that the attempt to construct a normal programme for all portions of mankind is idle and unscientific. For one thing, the number of such portions that we can with any plausibility treat as independent is very small. For another, such is the complexity of human affairs and such their interdependence, that we can not hope for scientific laws which will formulate a sequence of stages in any one province of man's activity. We can not, for instance, find a law which deals only with political and neglects proprietary arrangements, or a law which deals only with property and neglects religion. So soon as we penetrate below the surface, each of the cases whence we would induce our law begins to look extremely unique, and we shall hesitate long before we fill up the blanks that occur in the history of one nation by institutions and processes that have been observed in some other quarter. If we are in haste to drive the men of every race past all the known 'stages,' if we force our reluctant forefathers through agnatic _gentes_ and house-communities and the rest of it, our normal programme for the human race is like to become a grotesque assortment of odds and ends.

[Was land owned by village communities?]

It is an interesting question whether in the history of our own people we ought to suppose any definite 'stage' intermediate between the introduction of steady agriculture and the ownership of land by individuals. To say the least, we have no proof that among the Germans the land was continuously tilled before it was owned by individuals or by those small groups that constituted the households. This seems to be so whether we have regard to the country in which the Germans had once lived as nomads or to those Celtic and Roman lands which they subdued. To Gaul and to Britain they seem to have brought with them the idea that the cultivable land should be allotted in severalty. In some cases they fitted themselves into the agrarian framework that they found; in other cases they formed villages closely resembling those that they had left behind them in their older home. But to all appearance, even in that older home, so soon as the village was formed and had ploughed lands around it, the strips into which those fields were divided were owned in severalty by the householders of the village. Great pains had been taken to make the division equitable; each householder was to have strips equal in number and in value, and to secure equivalence each was to have a strip in every part of the arable territory. But our evidence, though it may point to some co-operation in agriculture, does not point to a communistic division of the fruits[1171]. Nor does it point to a time when a village council or a majority of villagers conceived that it had power to re-allot the arable strips at regular or irregular intervals[1172]. On the contrary, the individual's hold upon his strips developed very rapidly into an inheritable and partible ownership. No doubt this ownership grew more intense as time went on. It is a common remark that during yet recent ages the ownership of land that is known to our law has been growing more intense. This is true and patent enough; the landowner has gained powers of alienation that his predecessors did not enjoy. Possibly the only ownership of land that was known to the Lex Salica was inalienable and could be inherited only by sons of the dead owner. Then again, in old days a trespass that did no harm would have been no trespass. 'Nominal damages' are no primitive institution, and for a long time a man may have had no action if strange cattle browsed over land on which no crop of corn was ripening[1173]. But this growing intensity of ownership may be seen also in the case of movable goods. Indeed there is a sense in which English law may be said to have known a full ownership of land long ages before it knew a full ownership of chattels[1174]. What, however, we are concerned to observe is that the German village community does not seem to have resisted this development of ownership or set up for itself any antagonistic proprietary claim. It sought no more as regards the arable fields than a certain power of regulating their culture, and in old times the _Flurzwang_, the customary rotation of crop and fallow, must have appeared less as the outcome of human ordinance than as an unalterable arrangement established by the nature of things in general and of acre strips in particular[1175].