Chapter XII: Part I: Territorial Studies (9)

This last class requires some explanation. When the number of knights' fees created was not sufficient to discharge the baron's 'service', the balance of that service remained charged on the non-infeudated portion of his fief, that is, on the 'demesne', and was technically said to be 'super dominium'. It is all-important that this should be grasped, for it might otherwise be supposed that such a phrase as 'quot milites super dominium' implied the existence of actual knights enfeoffed on the demesne, which, to those who realize the working of the system of knight-service, is an absolute contradiction in terms. This, it will be found, beautifully explains the first article of the Assize of Arms (1181)--that every tenant is to keep in stock harness for as many knights 'quot habuerit feoda militum in dominio suo'.[50] That is to say, that if, after deducting the knights actually enfeoffed, there remained due from his fief a balance of knight-service, he must keep in readiness harness sufficient for those knights whom he would have to provide himself to discharge that balance.[51]

Having made this point clear, I now pass to the immediate object of the inquest of 1166. What that object was, no one has as yet discovered. Dr Stubbs, for instance, in his preface to the Pipe-Roll of 1166, writes: 'On the immediate purpose for which the inquiry was made--and it can scarcely be doubted that it was for the collection of a scutage--we shall look for further information in the rolls of the succeeding years.' My own researches enable me to assert that this inquest formed part of a financial revolution hitherto ignored, which deserves to be compared with those other innovations in administration and finance that characterized the latter half of the twelfth century in England.

When we come to place side by side the returns of 1166 and the payments made upon those returns in 1168, we find (at least, on the lay fiefs) the same distinction in both between 'the old feoffment' and 'the new'. But while the _returns_, as we saw, were made under three heads,[52] the _payments_ were made under two, namely, under the two feoffments. The reason of this difference can be established beyond dispute: the exchequer clerks had, in every instance, added the returns under the _third_ head to those under the _first_, and classed them together as 'old feoffment'. This is one of the points which, I think, have never been hitherto explained.

Plenty of examples might be given, but these two will suffice. Walter de Aincurt returns 24 fees _de veteri_, 5 _de novo_, and 11 _super dominium_. The exchequer, in 1168, records him as paying on 35 fees _de veteri_, and on 5 _de novo_.[53] Richard de Haie returns 11 fees _de veteri_, 4 _de novo_, and 5 _super dominium_. The exchequer records him as paying on 16 _de veteri_, and 4 _de novo_.

The main point, however, on which I propose to insist, is that these returns were intended to provide, and, as a matter of fact, did provide a new feudal assessment, wholly superseding the old one, in no case to the advantage of the tenant, but in many to the advantage of the crown. The _modus operandi_ was as follows. Instead of either adhering to the old assessment (_servitium debitum_), or uniformly substituting a new one based on the fees actually created, the crown selected in every case whichever of these two systems told in its own favour and against the tenant of the fief. If he had enfeoffed fewer knights than his _servitium debitum_ required, the crown retained that _servitium_ as the irreducible minimum of his assessment; but if he had created an excess of fees, the crown added that excess to his pre-existing assessment and increased the 'service' due from him _pro tanto_. This discovery is no conjecture, but is capable of arithmetical demonstration.

It should be noticed how skilfully the queries were framed in the inquest of 1166, to entrap the unwary tenant, and make him commit himself to the facts. If his enfeoffed knights were short of the required number, he was caught under the third query; if, on the other hand, he had an excess, he was caught under the others. Now, did the 'barons', when they made their returns, anticipate this sweeping and unwelcome reform? Presumably not. They appear to have drawn up their _cartae_ carefully and willingly, few of those who had an excess of knights taking even the precaution of mentioning their _servitium debitum_.[54] The church, moreover, from the terms in which her payments are thenceforth entered (_vide infra_), must have uniformly and systematically adopted an attitude of protest. Yet there is no trace of such protest in her returns. May we then infer that the crown sought to deliberately entrap its tenants? Two circumstances might favour that view. In the first place the tenants had to make their returns _extra sigillum pendentes_, thereby solemnly committing themselves;[55] in the second, the tenants would, of course, have been tempted to conceal or understate their excess of knights, had they foreseen the use that the crown would make of their returns.

The question may very fairly be asked, 'What check had the crown upon a tenant in the event of the latter omitting some of his "excess" fees?' The answer is supplied, I think, by a clause in the invaluable return of the northern primate. He there requests that his return may be accepted 'without prejudice', as a lawyer would say, in case of his omitting some small fees. That is to say, these formal returns might be brought up as evidence against tenants-in-chief who had omitted some of their fees, proving that they had thereby themselves disowned their right to the fees in question.[56]

Two points strike one strongly in the preparation of these returns. The first of these is the difficulty experienced in compiling a correct list of under-tenants and their holdings; the second is the employment of the 'Inquest' as a means of ascertaining the particulars.

Taking the former of these, we find Hugh Wac writing, 'si amplius inquirere possim, notificabo vobis'; and Guarine 'de Aula', 'si plus possim inquirere, faciam vobis scire'; so too the Bishop of Ely, 'de hiis vero certi sumus, et si amplius inquirere poterimus libenter vobis significabimus'; and the Bishop of Bath, 'si certiorem inquirere poterimus veritatem, nos illam vobis significabimus'; and Alfred of Lincoln, 'si plus inquiri potest, inquirere faciemus'. The Bishop of Exeter makes his return, 'sicut eam diligentius inquirere potui'; the Abbot of Tavistock, 'quantum inde sollicitius inquirendo scire potuit'. Hugh de Lacy, in a postscript to his return, adds a fee 'quod oblitus sum'; while the Earl of Clare has to send in a subsequent rider, containing an entry, 'quod ego postquam misi cartam ... recordatus sum'.

From this difficulty it is a short step to the inquests which it seems in some cases to have necessitated. The Abbot of Ramsey heads his return, 'Haec est inquisitio'; the Earl of Warwick similarly commences, 'Hoc est quod inquisivi per homines'. Earl Patrick makes his return, 'secundum quod de probis et antiquis hominibus meis inquirere potui'. 'Fecimus inquirere,' writes the Bishop of Bath, 'per legales homines meos.... Haec autem per eos inquisivimus.'

This brings us directly to the very important inquest referred to in the _carta_ of the Earl of Arundel:

Dominus noster Rex Henricus quadam contentione quae surrexit
inter milites de honore de Arundel de exercitu quodam de
Walliis, elegit iiij. milites de honore, de melioribus et
legalioribus, et antiquioribus ... et fecit eos recognoscere
servitia militum de honore, et super legalitatem et sacramenta
eorum inde neminem audire voluit.

Mr Eyton argued elaborately on genealogical grounds that this inquest must have taken place under Henry I, but indeed it is quite obvious from the language of the _carta_ itself that this was so. It is, consequently, worthy of notice for its bearing on 'the sworn inquest'. While on this subject, attention may be called to the unique entry in the Pipe-Roll of 12 Henry II (1166): 'Alanus de Munbi debet xl. s. quia non interfuit Jurat' feodorum militum' (p. 8). Investigation proves (through what is known as the Lindsey Survey) that Alan was an under-tenant of the honour of Brittany, the successor of that Eudo who held in Mumby _temp._ Domesday. This fact throws light on the entry, by suggesting that the inquest referred to concerned the honour of Brittany, the number of fees in which was then and subsequently doubtful.

But to return. It is infinitely easier to trace the change brought about by the inquest of 1166 in the case of the church fiefs than of the lay ones. For on the former it was uniform and glaring. Previously to 1166 the church tenants had paid on their _servitium debitum_ alone; after 1166 they paid, as a rule, on all the fees actually created upon the fief. Thus the assessment of the Bishop of Durham was raised at a blow from ten fees to more than seventy.[57] There were several equally striking cases among the prelates. Now, whether or not the church tenants feared something of the kind, they had generally been careful in their returns to set forth their _servitium debitum_, and when, in 1168, they were uniformly assessed on their total of fees, their uniform protest is expressed in the formula 'quos non recognoscit' applied to the payment on their excess knights. Such is the meaning of this puzzling formula which is peculiar to the church fiefs.[58] In these cases it wholly replaces the _de veteri_ and _de novo_ assessment which, from 1166, was applied to the lay fiefs.

II. THE SERVITIUM DEBITUM

The essential feature we have to keep in view when examining the growth of knight service is the _servitium debitum_, or quota of knight service due to the crown from each fief.

This has, I venture to think, been obscured and lost sight of in the generalizations and vague writing about the 'gradual process' of development. It is difficult for me to traverse the arguments of Gneist, Stubbs and Freeman, because we consider the subject from such wholly different standpoints. For them the introduction of knight service means the process of sub-infeudation on the several fiefs; for me it means the grant of fiefs to be held from the crown by knight service. Thus the process which absorbs the attention of the school whose views I am opposing is for me a matter of mere secondary importance. The whole question turns upon the point whether or not the tenants-in-chief received their fiefs to hold of the crown by a quota of military service, or not. If they did, it would depend simply on their individual inclinations, whether, or how far, they had recourse to sub-infeudation. It was not a matter of principle at all; it was, as Dr Stubbs himself put it, 'a matter of convenience',[59] a mere detail. What we have to consider is not the relation between the tenant-in-chief and his under-tenants, but that between the king and his tenants-in-chief: for this was the primary relation that determined all below it.

The assumption that the Conqueror cannot have introduced any new principle in the tenure of land lies at the root of the matter. Assuming this, one must of course seek elsewhere for the introduction of knight service. Have not the difficulties of the accepted view arisen from its exponents approaching the problem from the wrong point of view? The tendency to exalt the English and depreciate the Norman element in our constitutional development has led them I think, and especially Mr Freeman, to seek in Anglo-Saxon institutions an explanation of feudal phenomena. This tendency is manifest in their conclusions on the great council:[60] it colours no less strongly their views on knight service. In neither case can they bring themselves to adopt the feudal standpoint or to enter into the feudal spirit. It is to this that I attribute their disposition to bring the crown face to face with the under-tenant--or 'landowner' as they would prefer to term him--and so to ignore, or at least to minimize the importance of the tenant-in-chief, the 'middleman' of the feudal system. Making every allowance for the policy of the Conqueror in insisting on the direct allegiance of the under-tenant to the crown, and thereby checking the disintegrating influence of a perfect feudal system, the fact remains what we may term the 'military service' bargain was a bargain between the crown and the tenant-in-chief, not between the crown and his under-tenants. It follows from this that so long as the 'baron' (or 'tenant-in-chief') discharged his _servitium debitum_ to the crown, the king had no right to look beyond the 'baron', who was himself and alone responsible for the discharge of this service. It is, indeed, in this responsibility that lies the key to the situation. If the under-tenant of a knight's fee failed to discharge his service, it was not to him, but to his lord, that the crown betook itself. 'I know nothing of your tenant,' was in effect the king's position; 'you owe me, for the tenure of your fief, the service of so many knights, and that service must be performed, whether your under-tenants repudiate their obligations to yourself or not'. In other words the 'baron' discharged his service to the king, whereas the baron's under-tenants discharged theirs to their lord.[61] So the _Dialogus_ speaks of the under-tenant's 'numerum militum quos domino debuerat'.

Let us then apply ourselves directly to the quotas of military service due from the 'barons' to the crown, and see if, when ascertained, they throw any fresh light on the real problem.

No attempt, so far as I know, has ever been made to determine these quotas, and indeed it was the utter want of trustworthy information on the subject that led Swereford to undertake his researches in the thirteenth century. Those researches, unfortunately, leave us no wiser, partly from his defective method and want of the requisite accuracy; partly from the fact that what he sought was not abstract historical truth, but practical information bearing on the existing rights of the crown. We must turn therefore to the original authorities: (1) the _cartae baronum_, (2) the annual rolls. These were the two main sources of Swereford's information, as they must also be of ours. In the next part of this paper I shall deal with the evidence of the rolls, as checking and supplementing the _cartae baronum_.

I shall analyse the church fiefs first, because we can ascertain, virtually with exactitude, the _servitium debitum_ of every prelate and of every head of a religious house who held by knight service. The importance of these figures, together with the fact that they have never, so far as I know, been set forth till now, has induced me to append them here in full detail.

SEE SERVICE DUE SEE SERVICE DUE
knights knights

Canterbury 60 Bath 20 Winchester 60 London 20 Lincoln 60 Exeter 17-1/2[62] Worcester 50 [60] 'Chester' 15 Norwich 40 Hereford 15 Ely 40 Durham 10 Salisbury 32 Chichester 4 [2] York 20 [7]

Every English See then in existence is thus accounted for with the solitary and significant exceptions of Carlisle and Rochester. The latter See, we know, had enfeoffed knights for their names (_temp._ Henry I, I think, from internal evidence) are recorded in the _Textus Roffensis_ (p. 223);[63] the former had been created after the date when, as I shall argue, the Conqueror fixed the knight service due from the fees.

In the above list the figures in brackets refer to the assessments previous to 1166. Three changes were made at, or about, that date. The Bishop of Worcester, in accordance with the protest he had made from the beginning of the reign, obtained a reduction of his quota from sixty knights to fifty; while the Archbishop of York's _servitium_ was raised from seven knights to twenty, and that of the Bishop of Chichester from two knights to four. These changes are known to us only from the details of the prelate's scutages; there is nothing to account for them in the relevant _cartae_, and we can only infer from the formula _quos recognoscit_ that the two bishops whose _servitia_ were increased acquiesced in the justice of the crown's claim.

Proceeding to the 'service' of the religious houses:

HOUSE SERVICE DUE HOUSE SERVICE DUE
knights knights

Peterborough 60 Wilton 5
Glastonbury 40 [60] Ramsey 4
St Edmundsbury 40 Chertsey 3
Abingdon 30 St Bene't of Hulme 3
Hyde 20 Cerne[64] 2 [3]
St Augustine's 15 Pershore 2 [3]
Westminster 15(?) Malmesbury 3
Tavistock 15(?) Winchcombe 2
Coventry 10 Middleton 2
Shaftesbury 7 [10] Sherburne 2
St Alban's 6 Michelney 1
Evesham 5 Abbotsbury 1

The changes of assessment on religious houses were few, and are thus accounted for. Glastonbury, which paid on sixty knights in the first two scutages of the reign, paid on forty in the third and in those which followed. Pershore paid on three in the first scutage, protesting that it was only liable to two, and from 1168 it was only rated at two. Shaftesbury, which had paid on ten knights in the first scutage, was assessed at only seven in the third scutage and those which followed. Cerne also succeeded in getting its assessment reduced from three knights to two. With these changes should be compared the letter of Bishop Nigel of Ely to Ramsey Abbey certifying that it was only liable to an assessment of four knights. Two cases remain which require special treatment--Tavistock and Westminster.

Although Tavistock, in the first scutage, appears to have paid on the anomalous assessment of ten and a half knights its payment on fifteen in the two succeeding ones may fairly be taken as evidence that this was its _servitium debitum_.[65] Its abbot, however, made no reference to that _servitium_ in his return, and--by an exception to the regular practice in the case of church fiefs--we find him charged, not on the fees, (1) 'quos recognoscit', (2) 'quos non recognoscit', but on those which were enfeoffed 'de veteri', and 'de novo' just as if he were a lay tenant. As his fees 'de veteri' were sixteen, this figure recurs in successive scutages, until in 3 John we find him contesting as to one knight ('unde est contentio') who, doubtless, represented the difference between fifteen and sixteen.

The case of Westminster presents considerable difficulty, the entries relating to its payments of scutage being very puzzling. The abbey's fees lay chiefly in Worcestershire and Gloucestershire--especially Worcestershire--and it is under this county that we find it ultimately (_i.e._ from 1168 onwards) assessed at fifteen fees, an assessment which the abbot himself seems to have claimed, in the first scutage, as the right one.

Taking then the _servitium debitum_ of all the church fiefs, at their earliest ascertainable assessment, we obtain this result:

Bishops 458-1/2
Heads of religious houses 318
Capellaria de Bosham 7-1/2
-------
Grand total 784[66]

Far more difficult is the calculation of the _servitium debitum_ from the lay fiefs. The list which follows is constructed from the evidence of the _cartae_ and the rolls, and, though substantially correct, is liable to emendation in details. It only comprises those fiefs the _servitium_ of which I have been able to ascertain with certainty or probability.

Robert 'filius Regis' 100[67]
Earl Ferrers 80 (? 60)[68]
Honour of Totness 75
Honour of Tickhill 60 (?)[69]
Robert de Stafford 60
Count of Eu 60 (?)[70]
Earl Warrenne 60 (?)[71]
Lacy of Pontefract 60
Roger de Mowbray 60[72]
Earl of Essex 60
Walter fitz Robert (of Essex) 50
Honour of Richmond 50[73]
Gervase Paynell 50
Reginald de St Valery 50 (?)[74]
Patrick, Earl of Salisbury 40
Walter de Aincurt 40
William de Montfichet 40
Payn de Montdoubleau 40[75]
William de Roumare 40 (?)[76]
Hubert de Rye 35
Hubert fitz Ralf (Derbyshire) 30
Walter de Wahulle 30
William fitz Robert (Devon) 30
William de Traci 30[77]
Robert de Valoines 30[77]
Maurice de Craon 30[77]
William de Albini (of Belvoir) 30[77]
Bernard Balliol 30[78]
Roger de Arundel 30[79]
Walter de Mayenne 30 (?)[80]
Robert de Albini (Bucks) 25
Robert fitz Hugh 25
Alfred of Lincoln 25
Ralf Hanselin 25
William de Braose 25[81]
Oliver de Traci 25[81]
Gerard de Limesi 25 (?)[82]
Walter Waleran 20
Richard de Hay 20
Honour of Holderness 20
William de Windsor 20
Hugh de Bayeux 20
William de Vesci 20 (?)[83]
Daniel de Crevec[oe]ur 20 (?)[84]
Thomas de Arcy 20 (?)[85]
Hugh de Dover 15
Walter Bret 15
Baderon de Monmouth 15
Earl Richard de Redvers 15[86]
Adam de Brus 15
Hamo fitz Meinfelin 15
Osbert fitz Hugh 15 (?)[87]
? Hugh de Scalers 15[88]
? Stephen de Scalers 15
Gilbert de Pinkeni 15
Geoffrey Ridel 15
Robert Foliot 15
Robert de Choques 15
Robert de Caux 15
William Paynell 15 (?)
Richard de Reimes 10
Roger de Buron 10
Richard fitz William 10
William fitz Alan 10
Richard de Cormeilles 10
Roger de Kentswell 10
William Trussebut 10
Nigel de Lovetot 10
Manasser Arsic 10
Richard de Montacute 10
Wandrille de Courcelles 10
Walter de Bolebec (Bucks) 10
Robert de Hastings 10
Lambert de Scotenni 10
Drogo de Montacute 10 (?)[89]
William de Reimes 10 (?)[90]
William de Helion 10 (?)[91]

Graeland de Thani of Essex owed seven and a half knights (the half of fifteen), and Roger de Berkeley probably the same. Those who owed a _servitium_ of five knights were Robert fitz Harding, Baldwin Buelot, Simon de Cancy, Nigel de Lovetot (of the honour of Tickhill), Amfry de Cancy, Hugh de Dover (of the honour of Brunne),[92] Walter de Bolebec (Northumberland), Robert de Brus, Roger Bertram, and probably Stephen de Bulmer,[93] and Herbert 'de Castello'.

The cases in which the _servitium_ can be shown not to have been a multiple of five are comparatively few. That of Simon de Beauchamp of Bedford was 54, of William Fossard 33-1/2, of Humphrey de Bohun 30-1/2, of William Malet 20-1/6, of Robert de Beauchamp (of Somerset) 17, of William fitz John (of Harptree) 13-3/4, of William Blund 12, of Hugh Wac 10-1/8, of William de Ros, William fitz John (of Weston) and William de Beauchamp (of Worcestershire) 7, of John de Bidun and Jocelin de Lovaine 5-1/2.[94] But these, it will be seen, are quite insufficient to overthrow the accumulated array of evidence on the other side, and some of them are, doubtless, capable of explanation. The Bohun fief, for instance, in 1162 paid on exactly 30 fees.

It is impossible to resist the inference, from such evidence as we have, that the amount of the _servitium debitum_ was a matter of custom and tradition, and could not usually be determined by reference to written grants or charters. On this point the returns of three Essex tenants are most instructive, while their similarity is so striking, that, as in the case of the Shropshire _formulæ_, it can scarcely be due to accident. The Earl of Essex closes with the words: 'et homines mei dicunt mihi quod debeo Domino Regi lx. milites'. Walter fitz Robert, who follows him, writes: 'et hoc mihi homines mei intelligere faciunt, quod debeo inde Regi servitium de l. militibus'. William de Montfichet ends thus: 'et hoc faciunt homines mei mihi intelligere--quod pater meus deserviebat per xl. milites'. With these expressions we may compare those of William fitz Alan's tenants, who assert that his Norfolk fief 'non debet domino Regi nisi i. militem ... ut antiqui testantur'; that his Shropshire fief 'non debet Regi nisi x. milites in exercitu ... sicut antiqui testantur'; and that, as to his Wiltshire fief, 'non sumus certi quod servitium debeat Regi de hoc tenemento'. The Abbot of Chertsey, also, states his _servitium debitum_ with the proviso 'secundum quod scire possumus'. These expressions explain the uncertainty as to the _servitium debitum_ in such cases as the See of Worcester and Ramsey Abbey.[95]

The same principle applies to the relation between the tenant-in-chief and his under-tenant. Thus the very first entry in the _cartae_ runs as follows:

Willelmus de Wokindone iiij. milites et dimidium; et praeter
hoc, ex testimonio curiae meae, dimidium exigo, quem ipse se
non debere defendit.

Of another tenant on the same fief we read: 'praeter hoc, _ex testimonio curiae meae_, adhuc j. militem exigo'. Here, we see, appeal is made not to record evidence, but to oral testimony. So, too, the Bishop of Exeter adds this clause to his return:

Et praeter hos omnes, sicut _a multis audivi_, comes
Gloucestriæ, et comes Hugo, et comes de Clare debent tenere
de Exoniensi Episcopo; sed nullum ei servitium faciunt vel
recognoscunt.

Surely in all such cases as these the obvious inference is that the tenant had been enfeoffed _sine carta_, or in the very words of the Provisions of the Barons (1259) 'feofatus sine carta a tempore conquestus vel alio antiquo feofamento' (§ 1).

And now for my theory. No one can have even glanced at the lists I have compiled without being instantly struck by the fact that the 'service' is reckoned in round numbers, and is almost invariably _a multiple of 5, if not of 10_.[96] This discovery, of course, is absolutely destructive of the view that it always represented the number of five-hide (or £20) units contained in the fief. Further, the number of differing fiefs assessed at precisely the same figure proves that the assessment was wholly arbitrary and cannot have been even the round sum which approximated most nearly the number of such units.[97] What then was the true determinant in the light of these conclusions? I reply--_the unit of the feudal host_.

'On the continent,' writes Gneist, 'fifty _milites_, or at least twenty-five, were reckoned to one banneret; in England, in proportion to the smaller scale of enfeoffments, a smaller number appears to have formed the unit of the _constabularia_.'[98] He is right: the English _constabularia_, where I find it referred to, consists of _ten_ knights.[99] It is interesting to trace this unit and its multiples recurring in the narratives of Irish warfare, under Henry II, and in other struggles.[100] We meet with it also in the grant by the Empress to Geoffrey de Mandeville, in 1141, of 'feodum et servicium xx. militum' and in Stephen's grant to him of 'lx milites feudatos'.[101]

The next step is to show that the Normans were familiar with _servitium debitum_ in terms of the ten-knight unit when they landed in England. For this we have only to refer to Wace. For in the 'Roman de Rou', as quoted by Mr Freeman himself, we find William fitz Osbern assuring the duke as to his barons:

Vostre servise dobleront:
Ki solt mener vint chevaliers
Quarante en merra volontiers,
E ki de trente servir deit
De sesante servir vos velt,
E cil ki solt servir de cent
Dous cent en merra bonement.[102]

The _servitium debitum_, therefore, was a standing institution in Normandy, and 'to the mass of his (William's) followers', as Mr Freeman frankly admits,[103] a 'feudal tenure, a military tenure, must have seemed the natural and universal way of holding land'. When we find them and their descendants holding their fiefs in England, as they had been held in Normandy, by the service of a round number of knights, what is the simple and obvious inference but that, just as Henry II granted out the provinces of Ireland to be held as fiefs by the familiar service of a round number of knights,[104] so Duke William granted out the fiefs he formed in England?

If to escape from this conclusion the suggestion be made that these _servitia debita_ were compositions effected by English _antecessores_, it need only be answered that the fiefs acquired were wholly new creations, constructed from the scattered fragments of Anglo-Saxon estates. And though in the case of the church fiefs this objection might not apply, yet we have evidence, as I shall show, to prove that their _servitia_ also were determined by the conqueror's will, as indeed might be inferred from their close correspondence with those of the lay barons.

But if the lands of the conquered realm were so granted to be held by a _servitium debitum_ of knights, the key of the position is won, and the defenders of the existing view must retire along the whole line; for, as Mr Freeman himself observed, 'Let it be once established that land is held as a fief from the crown on condition of yielding certain services to the crown, and the whole of the feudal incidents follow naturally.'[105]

I am anxious to make absolutely clear the point that between the accepted view and the view which I advance, no compromise is possible. The two are radically opposed. As against the theory that the military obligation of the Anglo-Norman tenant-in-chief was determined by the assessment of his holding, whether in hidage or in value, I maintain that the extent of that obligation was not determined by his holding, but was fixed in relation to, and expressed in terms of, the _constabularia_ of ten knights, the unit of the feudal host. And I, consequently, hold that his military service was in no way derived or developed from that of the Anglo-Saxons, but was arbitrarily fixed by the king, from whom he received his fief, irrespectively both of its size and of all pre-existent arrangements. Such propositions, of course, utterly and directly traverse the view which these passages best summarize:

The belief that William I divided the English landed property
into military fees is erroneous.... According to the extent
and the nature of the productive property it could be
computed how many shields were to be furnished by each
estate, according to the gradually fixed proportion of a £20
ground-rent.[106]

There is no ground for thinking that William directly or
systematically introduced any new kind of tenure into the
holding of English lands. There is nothing to suggest any such
belief, either in the chronicles of his reign, in the Survey,
which is his greatest monument, in the genuine or even in the
spurious remains of his legislation.... As I have had to point
out over and over again, the grantee of William, whether the
old owner or a new one, held his land as it had been held in
the days of King Edward.[107]

There can be no doubt that the military tenure ... was itself
introduced by the same gradual process which we have assumed
in the case of the feudal usages in general. We have no light
on the point from any original grant made by the Conqueror
to a lay follower; but ... we cannot suppose it probable that
such gifts were made on any expressed condition, or accepted
with a distinct pledge to provide a certain contingent of
knights for the king's service.[108]

If my own conclusions be accepted, they will not only prove destructive of this view, but will restore, in its simplicity, a theory which removes all difficulties, and which paves the way to a reconsideration of other kindred problems, and to the study of that aspect of Anglo-Norman institutions in which they represent the feudal spirit developed on feudal lines.

III. SCUTAGE, AID, AND 'DONUM'

Precious for our purpose as are the _cartae_ of 1166, their evidence, as it stands, is incomplete. It needs to be supplemented by the early Pipe-Rolls of Henry II's reign. By collating these two authorities we obtain information which, singly, neither the one nor the other could afford. All those entries on the rolls which relate to _scutagia_, _auxilia_ or _dona_ require to be extracted and classified before we can form our conclusions. Hitherto, historians have remained content with repeating Swereford's _obiter dicta_, as extracted from the _Liber Rubeus_ by Madox, without checking these statements by the evidence of the rolls themselves.

The question of Swereford's authority is one which it is absolutely necessary to deal with, because his statements have been freely accepted by successive historical writers, and have formed, indeed, the basis on which their conclusions rest. Now the presumption is naturally in favour of Swereford's knowledge of his subject. His introduction to the _Liber Rubeus_ is dated 1230, and he tells us that he had been at work among the records in the days of King John, under William of Ely[109] himself: he wrote with the actual rolls before him; he had been intimate with the leading officials of the exchequer, and enjoyed full knowledge of its practice and its traditions. I cannot wonder that, this being so, his positive assertions should have been readily believed, or that Mr Hall, when, for a short time, I was associated with him in preparing the Red Book for the press, should, with a kindly bias in favour of so venerable an authority, have shrunk from my drastic criticism of his famous introduction to that volume.

On the other hand we have Swereford's own admission that he worked from the rolls alone.[110] These rolls are, for all purposes, as accessible to us as they were to him, while we possess the advantage of having, in contemporary chronicles, sources of information which he did not use, and with which, indeed, he shows no sign of being even conversant. We must go, therefore, behind Swereford and examine for ourselves the materials from which he worked.

Passing, for the present, over minor points, I would fix on the 'Great Scutage', or 'Scutage of Toulouse', as the test by which Swereford's knowledge and accuracy must stand or fall. If he is in error on this matter, his error is so grievous and so far-reaching that it must throw the gravest doubt on all his similar assertions. The date of the expedition against Toulouse was June 1159 (the host having been summoned at Mid-Lent): from the chroniclers we learn that, to provide the means for it, and especially to pay an army of mercenaries, a great levy was made in England and beyond sea. The roll of the following Michaelmas records precisely such a levy, and the payments so recorded must have been made for the expenses of this campaign. But we can go further still; we can actually prove from internal evidence that sums accounted for on the roll of 1159 were levied expressly for the Toulouse campaign.[111] Yet we are confidently informed by Swereford that this levy was for a Welsh war, and that the scutage of Toulouse is represented by the levies which figure on the rolls of 1161 and 1162. He appears to have evolved out of his inner consciousness the rule that a scutage, though fixed and even paid in any given year, was never accounted for on the rolls till the year after.[112] But as even this rule will not apply to his calculation here, one can only suggest that he was absolutely ignorant of the date of the Toulouse campaign.[113] The value of Swereford's calculations is so seriously affected by this cardinal error, that one may reject with less hesitation his statement that the scutage of 1156 was taken for a Welsh war, and not, as there is evidence to imply, for a campaign against the king's brother. Swereford, again, may be pardoned for his ignorance of the fact that scutage existed under Henry I,[114] but when he unhesitatingly assigns the Domesday Survey to the fourteenth year of the Conqueror (1079-80), he shows us that the precision of his statements is no proof of their accuracy. On both these points he has misled subsequent writers.[115]

The incredible ignorance and credulity even of officials at the time are illustrated by the fact that the Conqueror was generally believed to have created 32,000 knights' fees in England, and that Swereford plumed himself on his independence in doubting so general a belief.[116] His less sceptical contemporary, Segrave, continued to believe it, and even Madox hesitates to reject it.

The persistent assertion that the _Cartae Baronum_ were connected with, and preliminary to, the _auxilium ad filiam maritandam_ of 1168 is undoubtedly to be traced to Swereford's _ipse dixit_ to that effect. He distinctly asserts that the aid was fixed (_assisum_) in the thirteenth year (1167), that the returns (_cartae_) were made in the same year (1167), and that the aid was paid and accounted for in the fourteenth year (1168).[117] Modern research, however, has shown that the returns were made quite early in 1166, while the youthful Matilda, we know, was not married till October 1168. This throws an instructive light on Swereford's _modus operandi_. Finding from the rolls that the payments made in 1168 were based on the returns in the _cartae_, and not being acquainted with the date of the latter, he jumped to the conclusion that they must have been made in 1167, it being his (quite unsupported) thesis that all levies were fixed in the year preceding that in which they were accounted for on the rolls.

Proceeding further, we find him explaining (p. 9) that he omits the aid of 1165, 'quoniam probata summa auxilii propter hoc non probatur numerus militum'. And yet this aid, the last to be taken before the returns of 1166, is of special value and importance for the very purpose he speaks of. It is, indeed, an essential element in the evidence on which I build; and this compels me to discuss the point in some detail.

Those who contributed towards this aid either (1) gave arbitrary sums for the payment of _servientes_--whose number was almost invariably some multiple of five--or (2) paid a marc on every fee of their _servitium debitum_. We are only here concerned with those who adopted the latter course. Now let us take the case of those who adopted this alternative in the counties of Notts and Derby, and compare their payments with their _servitium debitum_ as known to us from other sources.

PAYMENTS (1165) SERVICE (1166)

_marcae_ knights

Hubert fitz Ralf 30 30
Ralf Halselin 25 25
Robert de 'Calz' 15 15
Roger de Burun 10 10

In this case there is no doubt as to the _servitium debitum_, for it is ascertained from the _cartae_ themselves. Having then proved, by this test, the exact correspondence of the payments, I turn to the case of Devonshire.

PAYMENTS (1165) SERVICE (1166)

_marcae_ knights[118]

Robert 'filius Regis' 100 (?)
William de Traci 30 (?)
William de Braose 25 (?)
Oliver de Traci 25 (?)
Abbot of Tavistock 15 15
William fitz Reginald 1 1
Ralf de Valtort 1 1
Robert fitz Geoffrey 1 1

Here we are supplied by this roll with four important _servitia_ which would otherwise be absolutely unknown to us. And they happen to be of special interest. For while the _carta_ of William de Braose returns twenty-eight fees, and that of Oliver de Traci twenty-three and a half (though he pays on thirty and a half),[119] their payments in 1165, by revealing their _servitium debitum_, show us that their fiefs represent the two halves of the Honour of Barnstaple (which, therefore, was assessed at 50 knights) then in their respective hands. Again, William de Traci returns his fees in his _carta_ as twenty-five and three-quarters, and says nothing about any balance on his _dominium_, as he should have done. Hence we should not have known his _servitium_ but for the roll of 1165.

Swereford's extraordinary failure to understand this roll aright is possibly due to the fact that most of the relevant payments are entered without mention of their object. He seems to have been very dependent upon the rolls explaining themselves, and to have worked in the spirit of a copying clerk rather than of an intelligent student.

One more example of his errors will suffice. In his abstracts from the aid 'ad maritandam primogenitam filiam regis' (1168), we read:

Abbas Gloucestriæ de promissione, sed non numeratur quid;
sed in rotulo praecedenti dicitur:--Abbas Gloucestriæ debet
xxxviij. l. ij. s. vj. d. de veteri scutagio Walliae.

Now (1) the amount of the abbot's contribution is duly entered on the roll ('xl. marcas de promissione de eodem auxilio'), and it is not paid in respect of fees, but is a voluntary proffer; (2) the phrase in the preceding roll is not 'de veteri _scutagio_', but 'de veteri _exercitu'_; (3) the payment there recorded represents a contribution of fifty _servientes_, and had nothing to do with scutage, for the abbot (as Swereford should have known) did not hold by military service, and ought not, therefore, to figure in his lists at all.[120]

Let us turn, therefore, to the rolls themselves. Now, although the language of the exchequer was not so precise as we could wish, it is possible, more or less, to distinguish and classify these levies. Thus, we have of course a typical 'aid' in the levy for the marriage of the king's daughter (1168), while, on the other hand, we have an equally typical 'scutage' in 1156, in the payments made by the church tenants in lieu of military service.

On the institution of 'scutage' there has been much misconception. It is placed by our historians among the great innovations wrought by Henry II, who is supposed by them to have introduced it in 1156.[121] Here we see, once again, the danger of seeking our information on such points secondhand, instead of going straight to the fountainhead for ourselves.

John of Salisbury implies that scutage was no novelty in 1156 when he writes, not that the king imposed it, but that he '_could not remit_ it'. This inference is at once confirmed by the appearance of scutage _eo nomine_ in the reign of Henry I.

The following charter is found in the (MS.) _Liber Eliensis_ (Lib. III), No. xxi, and in the Cottonian MS. Nero A. 15:

H. rex Anglorum Archiepiscopis, Episcopis, Abbatibus,
Comitibus, etc. Salutem. Sciatis me condonasse Ecclesiæ S.
Ætheldredæ de Ely pro Dei amore et anima Patris et Matris
meae et pro redemptione peccatorum meorum, et petitione Hervei
ejusdem Ecclesie Episcopi 40 libras de illis 100 libris
quas predicta Ecclesia solebat dare de _Scutagio_ quando
_Scutagium_ currebat[122] per terram meam Anglie: ita quod
Ecclesia amodo inperpetuum non dabit inde nisi 60 libras
quando _Scutagium_ per terram evenerit, et ita inperpetuum
sit de predictis libris Ecclesia predicta quieta. T. Rogero
Episcopo Saresberiensi, Gaufrido Cancellario meo et Roberto
de Sigillo et Willelmo de Tancarvilla et Willelmo de Albineio
Pincerna et Radulfo Basset et Gaufrido de Clintona et Willelmo
de Pondelarche. Apud Eilinges in transitu meo.

This is followed by (No. xxii) a grant of Chatteris Abbey to the church of Ely;[123] and this again is followed, in a register of Chatteris Abbey,[124] by a remission of 6s 7d Wardpenny hitherto paid by that abbey. The first and third charters receive singular confirmation, being thus accounted for in the Pipe-Roll of Henry I:

Et idem Episcopus debet ccxl. li. ut rex clamet eum quietum
de superplus militum Episcopatus, et ut Abbatia de Cateriz sit
quieta de Warpenna (p. 44).

This entry, moreover, connects the _scutagium_ with the system of knight-service (_superplus militum_).

It is delicious to learn, on comparing the records, that the virtuous king who made these grants for the weal of his parents' souls and the remission of his own sins, extorted from the church, for making them, an equivalent in hard cash.[125]

Again, the (MS.) Cartulary of St Evroul contains a confirmation by Randulf, Earl of Chester (1121-29) of his predecessor (d. 1120) Earl Richard's benefaction, 'liberam et quietam ab _escuagio_', etc., etc. The list of the Abbot of Peterborough's knights (see p. 131) is a further illustration of knight-service _temp._ Henry I, while the entry as to Vivian, who was enfeoffed by Abbot Turold: 'servit pro milite _cum auxilio_' (_Chron. Petrob._, p. 175), must refer to the somewhat obscure 'auxilium militum' of the period. So also, it would seem, must the curious charter of Eustace, Count of Boulogne,[126] in which he speaks of his knights serving: 'sive _in nummis_, sive in exercitu, sive in guarda', under Henry I. Most important of all, however, is a passage on which I have lighted since this essay first appeared. In reading through the letters of Herbert (Losinga), Bishop of Norwich (d. 1119), I found this appeal to the Bishop of Salisbury, in the king's absence from England:

In terris meis exiguntur quinquaginta libræ pro placitis, cum
earundem terrarum mei homines nec in responsionem nec in facto
peccaverint.[127] Item _pro militibus sexaginta libræ_ quos [?
quas] tanto difficilius cogor reddere, quanto annis præteritis
mea substantia gravius attenuata est (Ed. Giles, p. 51).

The sum is that to which the Ely contribution is reduced by the above charter, and the death of the writer in 1119 proves the early date of the payment.

Indeed, a little consideration will show that payment in lieu of military service, which was the essential principle of scutage, could be no new thing. The two forms which this payment might assume--payment to a substitute, or payment to the crown--both appear in Domesday as applicable to the fyrd; the former is found in the 'Customs' of Berkshire, the latter in other passages. From the very commencement of knight service, the principle must have prevailed; for the 'baron' who had not enfeoffed knights enough to discharge his _servitium debitum_, must always have hired substitutes to the amount of the balance. Nor is this a matter of supposition: we know as a fact, from the _Abingdon Chronicle_ and the _Ely History_, that under William I knights were so hired.[128] Here it should be noted, as a suggestive fact, that the 'forty days' of military service, though bearing no direct proportion either to the week or to the month, do so to the marc and to the pound. The former represents 4d, and the latter 6d, for each day of the military service.[129] It may fairly be assumed that this normal 'scutage' would be based on the estimated cost of substitutes paid direct. Thus the only change involved would be that the tenant would make his payments not to substitutes, but to the crown instead.

There is a valuable entry bearing on this point in the roll of 8 Henry II (p. 53). We there read:

Et in liberatione vii. militum soldariorum de toto anno quater
xx. et iiii. li. et xviii. s. et viii. d. Et in liberatione
xx. servientium de toto anno xxx. li. et vi. s. et viii. d.
Et in liberatione viii. Arbalist' viii. li. et xvi. sol. Et in
liberatione v. vigilum et i. Portarii vi. li. et xvi. d.

This represents 8d a day to each of the seven knights for a year of 364 days, which, be it observed, corresponds precisely with the statements in the _Dialogus_: 'Duo milites bajuli clavium quisque in die viii. [den.] _ratione militiae_; asserunt enim quod equis necessariis et armis instructi fore teneantur', etc. (i. 3). And so, we see, a scutage of two marcs, such as that which was raised for the expedition of Toulouse (1159), would represent, with singular accuracy, 8d a day for the forty days of feudal service, or exactly a knight's pay. Again the pay of the _serviens_, recorded in this passage, works out at a penny a day for a year of 364 days, which has an important bearing, we shall find, on the roll of three years later (11 Henry II). A similar calculation shows that the porter received 2d a day, and the _vigil_ 1d--the very pay assigned him in the _Dialogus_ (i. 3). There is another similar passage in the roll of 14 Henry II (p. 124):

Et in liberatione i. militis et ii. Portariorum, et ii.
vigilum de Blancmost' xviii. li. et v. sol. Et in liberatione
xl. servientum de Blancmust' de xxix. septimanis xxxiii. li.
et xvi. s. et viii. d. Et xx. servientibus qui remanserunt
xxiii. septimanas xiii. li. et viii. s. et iiii. d.

Here again the knight's pay works out at 8d a day, while the porters, the watchmen, and the _servientes_ received 1d. Specially valuable, however, are the entries (to which no one, I think, has drawn attention) relating to the small standing guards kept up in the summer months at 'Walton' and Dover.[130] Eventually the payments to these guards were made from the central treasury ('exitus de thesauro'), and are therefore appended, on the rolls, to the list of _combustiones_ where no one would think of looking for them.

On the roll of 10 Henry II we find: 'Liberatio iiii. militum et ii. servientum de Waletone a festo Ap. Phil' et Jac' usque ad festum S. Luce xxiiii. li. et xx. d.' This works out at exactly 8d a day for the _miles_, and 1d for the _serviens_. On the roll of the next year the five knights at Dover are paid £25 for 150 days' service, or exactly 8d a day each. So too on the roll of the thirteenth year we read: 'Liberatio iiii. militum de Waletone xxiii. li. et ix. s. et iiii. d. de clxxvi. diebus.... Et ii. servientibus de clxxvi. diebus xxix. sol. et iiii. d.' Here again the _miles_ gets 8d, the _serviens_ 1d a day. It is needless to multiply instances, but it may be added that similar calculations show the sailors of Richard's crusading fleet to have received 2d and their boatswains 4d a day.

It is, perhaps, possible to trace a complete change of policy in this matter by the crown. The Conqueror, we may gather from divers hints, was anxious to push forward the process of sub-infeudation, that as many knights as possible might be actually available for service. As the chief danger lay, at first, in the prospect of English revolt it was clearly his policy to strengthen to the utmost that 'Norman garrison', as we may term it, which the feudal system enabled him to quarter on the conquered land.[131] But as the two races slowly coalesced, the nature of the danger changed: it was no longer a question of Norman _versus_ Englishman, but of danger to the crown from war abroad and feudal revolt at home. Thenceforth its policy would be no longer to encourage personal service, but rather payment in lieu thereof, which would provide the means of hiring mercenaries, a more trustworthy and useful force. Clearly the accession of the Angevin house would, and did, give to this new policy a great impetus.

The first levy to which the rolls bear witness is that of 1156. As this was only raised from the _church_ fiefs, Henry II was, as yet, confining himself strictly to the precedent set him, as we know, in his grandfather's reign. This levy was at the rate of _one pound_ on the fee, and was made on the old assessment (_servitium debitum_).

I have already shown that the levy in question was not, as alleged, an innovation. Dr Stubbs writes: 'The peculiar measure of the second year was the collection of scutage from the knights' fees holding of ecclesiastical superiors,[132] a measure which met with much opposition from Archbishop Theobald at the time';[133] and speaking of William of Newburgh, he suggests that 'possibly in William's estimation the consent of St Thomas took from the scutage on church fees its sacrilegious character'.[134] But if the institution was fully recognized under Henry I, how was it 'sacrilegious'? Theobald's 'opposition' in 1156 can only be inferred from the king's reply explaining the necessity for the levy,[135] and was clearly directed, not against the principle, but by way of appeal against the necessity in that instance. Miss Norgate holds that 'no resentment seems to have been provoked by the measure', although she sees in it 'the origin of the great institution of scutage'.[136] Then there is the question of the object for which the levy was made. Swereford says 'pro exercitu Walliæ',[137] and this misled, through Madox, Dr Stubbs (who wrote 'the scutage of 1156 was also for the war in Wales',[138]) and Gneist.[139] The former writer, however, has elsewhere[140] pointed out that 'its object was to enable Henry to make war on his brother'; and Miss Norgate gives the same explanation.[141] Swereford's error, I believe, can undoubtedly be traced to an entry on the Pipe-Roll of the third year (1157) recording the payment by the Abbot of Abbotsbury of two marcs 'de exercitu Walie'.[142] But this must refer to the Welsh campaign of that year, not to the foreign trouble of the year before.[143]

The next levy was 'the scutage of Toulouse' in 1159. This, 'the great scutage' of Miss Norgate,[144] is, strange as it may seem, on the Pipe-Roll itself almost uniformly styled not a scutage, but a _donum_. The explanation given by Swereford is wholly inadequate, and is this: 'Intitulaturque illud scutagium _De Dono_ ea quidem, ut credo, ratione quod non solum prelati qui tenentur ad servitia militaria sed etiam alii abbates, de Bello et de Salopesbiria et alii tunc temporis dederunt auxilium'.[145]

Miss Norgate, adopting this explanation, writes:

The reason doubtless is that they were assessed, as the
historians tell us, and as the roll itself shows, not only
upon those estates from which services of the shield were
explicitly due, but also upon all lands held in chief of the
crown, and all church lands without distinction of tenure; the
basis of assessment in all cases being the knight's fee, in
its secondary sense of a parcel of land worth twenty pounds a
year. Whatever the laity might think of this arrangement,
the indignation of the clergy was bitter and deep. The wrong
inflicted on them by the scutage of 1156 was as nothing
compared with this, which set at nought all ancient precedents
of ecclesiastical immunity, and actually wrung from the church
lands even more than from the lay fiefs.[146]