It remains that we should speak very briefly of the higher ranks of men and the tenure by which they held their land. Little accurate information can be extorted from our record. The upper storeys of the old English edifice have been demolished and a new superstructure has been reared in their stead. It is not the office of Domesday to tell us much even of the new nobility, of the services which the counts and barons are to render to the king in return for their handsome endowments: -- as to the old nobility, that has perished. Still there are some questions that we ought to ask.
The general theory that all land tenure, except indeed the tenure by which the king holds land in demesne, is dependent tenure, seems to be implied, not only by many particular entries, but also by the whole scheme of the Every holder of land, except the king, holds it of (de) some lord, and therefore every acre of land that is not royal demesne can be arranged under the name of some tenant in chief. Even a church will hold its land, if not of the king, then of some other lord.(1*) The terms of the tenure are but very rarely described, for Domesday is no feodary. Just now and again a tenure in elemosina is noticed and in some of these cases this term seems already to bear the technical sense that it will have in later days; the tenant owes a spiritual, but no secular service.(2*) A few instances of what later lawyers would call a 'tenure by divine service,' as distinct from a tenure in frank-almoin, may be found.(3*) A few words here and there betray the existence of tenure by knight's service and of castle guard.(4*) In the servientes Regis who have been enfeoffed in divers counties we may see the predecessors of the tenants by serjeanty.(5*) We shall remark, however, the absence of those abstract terms which are to become the names of the various tenures. We read of servientes, sochemanni, villani, burgenses, but not of seriantia,(6*) socagium, villenagium, burgagium. As we pursue our retrogressive course through the middle ages, we do not find that the law of personal condition becomes more and more distinct from the law of land tenure; on the contrary, the two become less and less separable.
It has sometimes been said that a feudal tenure was the only kind of land tenure that the Norman conquerors could conceive. In a certain sense this may be true, but we should have preferred to say that probably they could not easily conceive a kind of tenure that was not dependent: -- every one who holds land (except he be the king) holds it of someone else. The adjective 'feudal' was not in their vocabulary, and their use of the word feudum -- occasionally we meet the older feum(7*) -- is exceedingly obscure. Very rarely does it denote a tenure or a mass of rights; usually, though it may connote rights of a certain order, it denotes a stretch of land; thus we may read of the fee of the Bishop of Bayeux, thereby being meant the territory which the bishop holds. Occasionally, however, we hear of a man holding land in feudo. One instance may be enough to show that such a phrase did not imply military tenure: -- 'William the Chamberlain held this manor in feudo of the Queen [Matilda] at a rent of ? a year and after her death he held it in the same fashion of the king.'(8*) All sense of militariness, and all sense of precariousness, that the word has ever had in its continental history, seems to be disappearing. Already the process has begun which will make it applicable to every person who has heritable rights in land. William the Chamberlain is, we take it, already a fee farmer, that is, a rent-paying tenant with heritable rights.(9*) As to the word beneficium, which feum or feudum has been supplanting, we shall hardly find it with its old meaning. It seems to be holding its own onlv within the sphere of ecclesiastical rights, where the 'benefice' will survive until our own day.(10*)
A yet more interesting and equally foreign word is not unfrequently used, namely, alodium. The Norman commissioners deemed that a large number of English tenants in Kent, Sussex, Surrey and Hampshire and some in Berkshire had been alodiarii or aloarii and had held in alodium or sicut alodium. The appearance of this term in one district and ln one only is far from proving that there had been anything peculiar in the law of that district. It may well be a mere chance that the liberi homines of other counties are not called alodiaries. Still in Hampshire, where alodiaries abounded, it was not every free man holding land who had an alod.(11*) Perhaps we shall be right in thinking that the term pointed to heritability: -- the free man who holds land but has no alod has only an estate for life. Certainly it does not mean that the tenant has no lord. The alodiary may hold his alod 'of' his lord'.(12*) he may owe service to , his lord.(13*) he may pay a relief.(14*) he may have no power 'to withdraw himself with his land' from his lord.(15*) The Norman lawyers had no speculative objection to the existence of alodiaries; it in no way contradicted such doctrine of tenure as they had formed. In 1086 there were still alodiaries in Berkshire,(16*) and in royal charters of a much later day there is talk of the alodiaries of Kent as of an existing class.(17*) It is just possible that William's commissioners saw some difference between holding in feudo and holding in alodio. If ever they contrasted the two words, they may have hinted that while the feudum has been given by the lord to the man, the alodium has been brought by the man to the lord; but we cannot be very certain that they ever opposed these terms to each other.(18*) Such sparse evidence as we can obtain from Normandy strengthens our belief that the wide, the almost insuperable, gulf that modern theorists have found or have set between 'alodial ownership' and 'feudal tenure' was not perceptible in the eleventh century.(19*) It can be no part of our task to trace the history of these terms alodium and feudum behind the date at which they are brought into England but hereafter we shall see that here in England a process had been at work which, had these terms been in use, would have brought the alod very near to the feud, the feud very near to the alod.
It is probable that this process had gone somewhat further in Normandy than in England. It is probable that the Normans knew that in imposing upon all English lands 'the formula of dependent tenure' they were simplifying matters. They seem to think, and they may be pretty right in thinking, that every English land-holder had held his land under (sub) some lord; but apparently they do not think that every English land-holder had held his land of (de) some lord. Not infrequently they show that this is so. Thus one Sigar holds a piece of Cambridgeshire of Geoffrey de Mandeville; he used to hold it under AEsgar the Staller.(20*) We catch a slight shade of difference between the two prepositions; sub lays stress on the lord's power, which may well be of a personal or justiciary, rather than of a proprietary kind, while de imports a theory about the origin of the tenure; it makes the tenant's rights look like derivative rights: -- it is supposed that he gets his land from his lord. And at least in the eastern counties -- so it may well have seemed to the Normans -- matters sadly needed simplification. Even elsewhere and when a large estate is at stake they cannot always get an answer to the question 'Of whom was this land holden?(21*) Still they thought that some of the greatest men in the realm had held their lands, or some of their lands, of the king or of someone else. The formulas which are used throughout the description of Hampshire and some other counties seem to assume that every holder of a manor, at all events if a layman, had held it of the king, if he did not hold it of another lord. Tenure in feudo again they regarded as no innovation.(22*) They saw the work of subinfeudation: -- Brihtmaer held land of Azor and Azor of Harold; we may well suppose that Harold held it of the king and that some villeins held part of it of Brihtmaer, and thus we see already a feudal ladder with no less than five rungs.(23*) They saw that the thegns owed 'service' to their lords.(24*) They saw the heriot; they sometimes called it a relief.(25*) We cannot be sure that this change of names imported any change in the law; when a burgess of Hereford died the king took a heriot, but if he could not get the heriot he took the dead man's land.(26*) They saw that in certain cases an heir had to 'seek' his ancestor's lord if he wished to enjoy his ancestor's land.(27*) They saw that many a free man could not give or sell his land without his lord's consent. They saw that great and powerful men could not give or sell their land without the king's consent.(28*)
They saw something very like military tenure. No matter with which we have to deal is darker than the constitution of the English army on the eve of its defeat. We may indeed safely believe that no English king had ever relinquished the right to call upon all the free men of his realm to resist an invader. On the other hand, it seems quite clear that, as a matter of fact, 'the host' was no longer 'the nation in arms.' The common folk of a shire could hardly be got to fight outside their shire, and ill-armed troops of peasants were now of little avail. The only army upon which the king could habitually rely was a small force. The city of Oxford sent but twenty men or twenty pounds.(29*) Leicester sent twelve men:(30*) Warwick sent ten.(31*) In Berkshire the law was that, if the king called out the host, one soldier (miles) should go for every five hides and should receive from each hide four shillings as his stipend for two months' service. If the man who was summoned made default, he forfeited all his land to the king; but there were cases in which he might send one of his men as a substitute, and for a default committed by his substitute he suffered no forfeiture, but only a fine of fifty shillings.(32*) It is probable that a similar 'five-hide rule' obtained throughout a large part of England. The borough of Wilton was bound to send twenty shilling or one man 'as for an honour of five hides.'(33*) When an army or a fleet was called out, Exeter 'served to the amount of five hides.'(34*) All this points to a small force of well armed soldiers. For example, 'the five-hide rule' would be satisfied if Worcestershire sent a contingent of 240 men. But not only was the army small; it was a territorial army; it grew out of the soil.
At first sight this 'five-hide rule' may seem to have in it little that is akin to a feudal system of knights' fees. We may suppose that it will work thus: -- The host is summoned; the number of hides in each hundred is known. To dispatch a company of soldiers proportioned to the number of the hides, for example twenty warriors if the hundred contains just one hundred hides, is the business of the hundred court and the question 'Who must go?' will be answered by election, rotation or lot. But it is not probable that the territorializing process will stop here, and this for several reasons. An army that cannot be mobilized without the action of the hundred moots is not a handy force. While the hundredors are deliberating, the Danes or Welshmen will be burning and slaying. Also a king will not easily be content with the responsibility of a fluctuating and indeterminate body of hundredors; he will insist, if he can, that there must be some one person answerable to him for each unit of military power. A serviceable system will not have been established until the country is divided into 'five-hide units,' until every man's holding is such an unit, or is composed of several such units, or is an aliquot share of such an unit. Then again the holdings with which the rule will have to deal are not homogeneous; they are not all of one and the same order. It is not as though to each plot of land there corresponded some one person who was the only person interested in it; the occupiers of the soil have lords and again those lords have lords. The king will insist, if he can, that the lords who stand high in this scale must answer to him for the service that is due from all the lands over which they exercise a dominion, and then he will leave them free to settle, as between themselves and their dependants, the ultimate incidence of the burden: -- thus room will be made for the play of free contract. At all events, when, as is not unusual, some lord is the lord of a whole hundred and of its court, the king will regard him as personally liable for the production of the whole contingent that is due from that hundred. In this way a system will be evolved which for many practical purposes will be indistinguishable from the system of knights' fees, and all this without any help from the definitely feudal idea that military service is the return which the tenant makes to the lord for the gift of land that the lord has made to the tenant.
That this process had already done much of its work when the old English army received its last summons, we cannot doubt, though it is very possible that this work had been done sporadically. We see that the land was being plotted out into five-hide units. In one passage the Norman clerks call such unit an honour, an 'honour of five hides'.(35*) There is an old theory based upon legal texts that such an honour qualifies its lord or owner to be a thegn. If a ceorl prospers so that he has five hides 'to the king's utware,' that is, an estate rated as five hides for military purposes, he is worthy of a thegn's wergild.(36*) Then the Anglo-Saxon charters show us how the kings have been endowing their thegns with tracts of territory which are deemed to contain just five or some multiple of five hides.(37*) The thegn with five hides will have tenants below him; but none of them need serve in the host if their lord goes, as he ought to go, in person. Then each of these territorial units continues to owe the same quantum of military service, though the number of persons interested in it be increased or diminished, and thus the ultimate incidence of the duty becomes the subject-matter of private arrangements. That is the point of a story from Lincolnshire, which we have already recounted: -- A man's land descends to his four sons; they divide it equally and agree to take turns in doing the military service that is due from it; but only the eldest of them is to be the king's man.(38*) Then we see that the great nobles lead or send to the war all the milites that are due from the lands over which they have a seignory. There are already wide lands which owe military service -- we cannot put it otherwise -- to the bishop of Winchester as lord of Taunton:they owe 'attendance in the host along with the men of the bishop.'(39*) The churches of Worcester and Evesham fell out about certain lands at Hamton; one of the disputed questions was whether or no Hamton ought to do its military service 'in the bishop's hundred of Oswaldslaw' or elsewhere.(40*) This question we take to be one of great importance to the bishop. Lord of the triple hundred of Oswaldslaw, lord of three hundred hides, he is bound to put sixty warriors into the field and he is anxious that men who ought to be helping him to make up this tale shall not be serving in another contingent.
But from Worcestershire we obtain a still more precious piece of information. The custom of that county is this: -- When the king summons the host and his summons is disregarded by one who is a lord with jurisdiction, 'by one who is so free a man that he has sake and soke and can go with his land where he pleases,' then all his lands are in the king's mercy. But if the defaulter be the man of another lord and the lord sends a substitute in his stead, then he, the defaulter, must pay forty shillings to his lord -- to his lord, not to the king, for the king has had the service that was due; but if the lord does not send a substitute, then the forty shillings which the defaulter pays to the lord, the lord must pay to the king.(41*) A feudalist of the straiter sort might well find fault with this rule. He might object that the lord ought to forfeit his land, not only if he himself fails to attend the host, but also if he fails to bring with him his due tale of milites. Feudalism was not perfected in a day. Still here we have the root of the matter -- the lord is bound to bring into the field a certain number of milites, perhaps one man from every five hides, and if he cannot bring those who are bound to follow him, he must bring others or pay a fine. His man, on the other hand, is bound to him and is not bound to the king. That man by shirking his duty will commit no offence against the king. The king is ceasing to care about the ultimate incidence of the military burden, because he relies upon the responsibility of the magnates. How this system worked in the eastern counties where the power of the magnates was feebler, we cannot tell. It is not improbable that one of the forces that is attaching the small free proprietors to the manors of their lords is this 'five-hide rule'; they are being compelled to bring their acres into five-hide units, to club together under the superintendence of a lord who will answer for them to the king, while as to the villeins, so seldom have they fought that they are ceasing to be 'fyrd-worthy'.(42*) But in the west we have already what in substance are knights' fees. The Bishop of Worcester held 300 hides over which he had sake and soke and all customs; he was bound to put 60 milites into the field; if he failed in this duty he had to pay 40 shillings for each deficient miles. At the beginning of Henry II's reign he was charged with 60 knights' fees.(43*)
We are not doubting that the Conqueror defined the amount of military service that was to be due to him from each of his tenants in chief, nor are we suggesting that he paid respect to the rule about the five hides, but it seems questionable whether he introduced any very new principle. A new theoretic element may come to the front, a contractual element: -- the tenant in chief must bring up his knights because that is the service that was stipulated for when he received his land. But we cannot say that even this theory was unfamiliar to the English. The rulers of the churches had been giving or 'loaning' lands to thegns. In so doing they had not been dissipating the wealth of the saints without receiving some 'valuable consideration' for the gift or the loan (laen); they looked to their thegns for the military service that their land owed to the king. To this point we must return in our next essay; but quite apart from definitely feudal bargains between the king and his magnates, between the magnates and their dependants, a definition of the duty of military service which connects it with the ownership of land (and to such a definition men will come so soon as the well-armed few can defeat the ill-armed many) will naturally produce a state of things which will be patient of, even if it will not engender, a purely feudal explanation. If one of the men to whom the Bishop of Worcester looks for military service makes a default, the fine that is due from him will go to the bishop, not to the king. Why so? One explanation will be that the bishop has over him a sake and soke of the very highest order, which comprehends even that fyrd-wite, that fine for the neglect of military duty, which is one of the usually reserved pleas of the crown.(44*) Another explanation will be that this man has broken a contract that he made with the bishop and therefore owes amends to the bishop: -- to the bishop, not to the king, who was no party to the contract. Sometimes the one explanation will be the truer, sometimes the other. Sometimes both will be true enough. As a matter of fact, we believe that these men of the Bishop of Worcester or their predecessors in title have solemnly promised to do whatever service the king demands from the bishop.(45*) Still we can hardly doubt which of the two explanations is the older, and, if we attribute to the Norman invaders, as perhaps we may, a definite apprehension of the theory that knight's service is the outcome of feudal compacts, this still leaves open the inquiry whether the past history of military service in Frankland had not been very like the past history of military service in England. Already in the days of Charles the Great the duty of fighting the Emperor's battles was being bound up with the tenure of land by the operation of a rule very similar to that of which we have been speaking. The owner of three (at a later time of four) manses was to serve; men who held but a manse apiece were to group themselves together to supply soldiers. Then at a later time the feudal theory of free contract was brought in to explain an already existing state of things.(46*)
Closely connected with this matter is another thorny topic, namely, the status of the thegn and the relation of the thegn to his lord. In the Confessor's day many maneria had been held by thegns; some of them were still holding their lands when the survey was made and were still called thegns. The king's thegns were numerous, but the queen also had thegns, the earls had thegns, the churches had thegns and we find thegns ascribed to men who were neither earls nor prelates but themselves were thegns.(47*) Many of the king's thegns were able to give or sell the lands that they held, 'to go to whatever lord they pleased.'(48*) On the other hand, many of the thegns of the churches held lands which they could not 'withdraw' from the churches;(49*) in other words 'the thegn-lands' of the church could not be separated from the church.(50*) The Conqueror respected the bond that tied them to the church. The Abbot of Ely complained to him that the foreigners had been abstracting the lands of St Etheldreda. His answer was that her demesne manors must at once be given back to her, while as for the men who have occupied her thegn-lands, they must either make their peace with the abbot or surrender their holdings.(51*) Thus the abbot seems to have had the benefit of that forfeiture which his thegns incurred by espousing the cause of Harold. We see therefore that the relation between thegn, lord and land varied from case to case. The land might have proceeded from the lord and be held of the lord by the thegn as a perpetually inheritable estate, or as an estate granted to him for life, or granted to him and two successive heirs;(52*) on the other hand, the lord's hold over the land might be slight and the bond between thegn and lord might be a mere commendation which the thegn could at any time dissolve. Again, the relation between thegn and lord is no longer conceived as a menial, 'serviential' or ministerial relation. The Taini Regis are often contrasted with the Servientes Regis.(53*) The one trait of thegnship which comes out clearly on the face of our record is that the thegnis a man of war.(54*) But even this trait is obscured by language which seems to show that there has been a great redistribution of military service. Though there is no Latin word that will translate thegn except miles, though these two terms are never contrasted with each other, and though there are thegns still existing, still of these two terms one belongs to the old, the other to the new order of things.(55*) Thus thegnship is already becoming antiquated and we are left to guess from older dooms and later Leges what was its essence in the days of King Edward.
The task is difficult for we can see that this institution has undergone many changes in the course of a long history and yet cannot tell how much has remained unchanged. We begin by thinking of thegnship as a relation between two men. The thegn is somebody's thegn. The household of the great man, but more especially the king's household, is the cradle of thegnship. The king's thegns are his free servants -- servants but also companions. In peace they have duties to perform a out his court and about his person; they are his body-guard in war. Then the king -- and other great lords follow his example -- begins to give lands to his thegns, and thus the nature of the thegnship is modified. The thegn no longer lives in his lord's court; he is a warrior endowed with land. Then the thegnship becomes more than a relationship, it becomes a status. The thegn is a 'twelve hundred man'; his wergild and his oath contervail those of six ceorls. This status seems to be hereditary; the thegn's sons are 'dearer born' than are the sons of the ceorl.(56*) But we cannot tell how far this principle is carried. We cannot easily reconcile this hereditary transmission of thegn-right with the original principle that thegnship is a relation between two men. We may have thegns who are nobody's thegns, or else we may have persons entitled to the thegnly wergild who yet are not thegns. What is more, since the law which regulates the inheritance of land does not favour the first-born, we may have poor thegns and landless thegns. Yet another principle comes into play. A duty of finding well armed warriors for the host is being territorialized; every five hides should find a soldier. The thegn from of old has to attend the host with adequate equipment; the men who under the new system have to attend the host with horse and heavy armour are usually thegns. Then the man who has five hides, and who therefore ought to put a warrior into the field, is a thegn or is entitled to be a thegn. The ceorl obtains the thegnly wergild if he has an estate rated for military purposes at five hides. Another version of this tradition requires of the ceorl who 'thrives to thegn-right' five hides of his own land, a church, a kitchen, a house in the burh, a special office in the king's hall. To be 'worthy of thegn-right' may be one thing, to be a thegn, another. To be a thegn one must be some one's thegn. The prosperous ceorl will be no thegn until he has put himself under some lord. But the bond between him and his lord may be dissoluble at will and may hardly affect his land. It is, we repeat, very difficult to discover how these various principles were working together. checking and controlling each other in the first half of the eleventh century. Several inconsistent elements seem to be blended. There is the element of hereditary caste: -- the thegn transmits thegnly blood to his offspring. There is the element of personal relationship: -- he is the thegn of some lord and owes fealty to that lord. There is the military element: -- he is a warrior who has horse and heavy armour and is bound to fight the nation's battles. Connected with this last there is the proprietary element: -- each five hides must send a warrior to the host; the man with five hides is entitled to become, perhaps he may be compelled to become a thegn, a warrior.(57*)
On the whole, we gather from Domesday that the military element is subduing the others. The thegn is the man who for one reason or another is a warrior. For one reason or another, we say; for the class of thegns is by no means homogeneous. On the other hand, we see the thegns of the churches, who have been endowed by the prelates in order that they may do the military service due from the ecclesiastical lands. Many of the prelates have thegns, and for the creation of thegn-lands by the churches it would not be easy to find any explanation save that which we have already found in the territorialization of military service. The thegn might pay some annual 'recognition' to the church, he might send his labourers to help his lord for a day or two at harvest time; but we may be sure that he was not rack-rented and that, if military service be left out of account, the church was a loser by endowing him. Here the land proceeds from the lord to the thegn; the thegn cannot give or sell it; the holder of that land can have no lord but the church; if he forfeits the land, he forfeits it to the church. But, on the other hand, we see numerous king's thegns who are able 'to go to what lord they please.' We may see in them landed proprietors who by the play of 'the five-hide rule' have become bound to serve as warriors. We may be fairly certain that they have not been endowed by the king, otherwise they would not enjoy the liberty, that marvellous liberty, of leaving him, of putting themselves under the protection and the banner of some earl or some prelate. Not that every thegn will (if we may borrow phrases from a later age) possess a full 'thegn's fee' or owe the service of a whole warrior. Large groups of thegns we may see who obviously are brothers or cousins enjoying in undivided shares the inheritance of some dead ancestor. They may take it in turns to go to the war; the king may hold the eldest of them responsible for all the service; but each of them will be called a thegn, will be entitled to a thegnly wergild and swear a thegnly oath. Still, on the whole, the thegn of Domesday is a warrior, and he holds -- though perhaps along with his coparceners -- land that is bound to supply a warrior.
In the main all thegns seem to have the same legal status, though they may not be all of equal rank. All of them seem to have the wergild of twelve hundred shillings. A law of Cnut, after describing the heriot of the earl, distinguishes two classes of thegns; there is 'the king's thegn who is nighest to him' and whose heriot includes four horses and 50 mancuses of gold, and 'the middle thegn' or 'less thegn' from whom he gets but one horse and one set of arms or ?.(58*) This law should we think be read in connexion with the rule that is recorded by Domesday as prevailing in the shires of Derby and Nottingham: -- the thegn who had fewer than seven manors paid a relief of 3 marks to the sheriff, while he who had seven and upwards paid ? to the king.(59*) A rude line is drawn between the richer and the poorer thegns of the king. The former deal immediately with the king and pay their reliefs directly to him; the latter are under the sheriff and their reliefs are comprised in his farm. Thus the wealthy thegns, like the barones maiores of later days, are 'nigher to' the king than are the 'less-thegns' or those barones minores who in a certain sense are their successors.
The kings, the earls and the churches have of course many demesne manors. Of the ecclesiastical estates we shall speak in our next essay, for they can be best examined in the light that is cast upon them by the Anglo-Saxon charters. Here we will merely observe that some of the churches have not only large, but well compacted territories. The abbey of St Etheldreda, for example, besides having outlying manors, holds the two hundreds which make up the isle of Ely; her property in Cambridgeshire is valued at ?18.(60*) The earls also are rich in demesne manors and so is the king.
King William is much richer than King Edward was. The Conqueror has been chary in appointing earls and consequently he has in his hand, not only the royal manors, but also a great many comital manors, to say nothing of some other estates which, for one reason or another, he has kept to himself. Edward had been rich, but when compared with his earls he had not been extravagantly rich. In Somersetshire, for example, there were twelve royal manors which may have brought in a revenue of ?00 or thereabouts, whIle there were fifteen comital manors which were worth nearly ?00.(61*) The royal demesne had been a scattered territory; the king had something in most shires, but was far richer in some than in others. It was not so much in the number of his manors as in their size and value that he excelled the richest of his subjects. Somehow or another he had acquired many of those vills which were to be the smaller boroughs and the market towns of later days. We may well suppose that from of old the vills that a king would wish to get and to keep would be the flourishing vills, but again we can not doubt that many a vill has prospered because it was the king's.
Among the manors which William holds in the south-west a dIstinction is drawn by the Exeter Domesday. The manors which the Confessor held are 'The King's Demesne which belongs to the kingdom,' while those which were held by the house of Godwin are the 'Comital Manors.'(62*) So in East Anglia certain manors are distinguished as pertaining or having pertained to the kingdom or kingship, the regnum or regio.(63*) This does not seem to have implied that they were inalienably annexed to the crown, for King Edward had given some of them away. Neither when it speaks of the time of William, nor when it speaks of the time of Edward, does our record draw any clear line between those manors which the king holds as king and those which he holds in his private capacity , though it may just hint that certain ancient estates ought not to be alienated. The degree in which the various manors of the crown stood outside the national system of finance, justice and police we cannot accurately ascertain. Some, but by no means all, pay no geld. Of some it is said that they have never paid geld. Perhaps in these ingeldable manors we may see those which constituted the royal demesne of the West Saxon kings at some remote date. Of the king's vill of Gomshall in Surrey it is written: 'the villeins of this vill were free from all the affairs of the sheriff.'(64*) as though it were no general truth that with a royal manor the sheriff had nothing to do.
As with the estates of the king, so with the estates of the earls, we find it impossible to distinguish between private property and official property. Certain manors are regarded as the 'manors of the shire' (mansiones de comitatu(65*)); certain vills are 'comital vills.'(66*) they belong to 'the consulate.'(67*) Hereditary right tempered by outlawry was fast becoming the title by which the earldoms were holden. The position of the house of Leofric in Mercia was far from being as strong as the position of the house of Rolf in Normandy, and yet we may be sure that King Harold would not have been able to treat the sons of AElfgar as removable officers. But one of the best marked features of Domesday a feature displayed on page after page, the enormous wealth of the house of Godwin, seems only explicable by the supposition that the earlships and the older ealdormanships had carried with them a title to the enjoyment of wide lands. That enormous wealth had been acquired within a marvellously short time. Godwin was a new man: nothing certain is known of his ancestry. His daughter's marriage with the king will account for something; Harold's marriage with the daughter of AElfgar will account for somethings, for instance, for manors which Harold held in the middle of AElfgar's country;(68*) and a great deal of simple rapacity is laid to the charge of Harold by jurors whose testimony is not to be lightly rejected;(69*) but the greater part of the land ascribed to Godwin, his widow and his sons, seems to consist of comitales villae.
The wealth of the earls is a matter of great importance. If we subtract the estates of the king, the estates of the earls, and the estates of the churches -- and, as we shall see hereafter, the churches had obtained the bulk of their wealth directly from the kings, -- if we subtract again the lands which the king, the earls, the churches have granted to their thegns, the England of 1065 will not appear to us a land of very great landowners, and we may obtain a valuable hint as to one of the origins of feudalism. A vast amount of land is or has recently been held by office-holders, by the holders of the kingship, the earlships, or the ealdormanships. We seem to see their proprietary rights arising in the sphere of public law, growing out of governmental rights, which however themselves are conceived as being in some sort proprietary . Many a passage in Domesday will suggest to us that a right to take tribute and a right to take the profits of justice have helped to give the king and the earls their manors and their seignories. Even in his own demesne manors the king is apt to appear rather as a tribute taker than as a landowner. Manors of very unequal size and value have had to supply him with equal quantities of victuals; each has to give 'a night's farm' once a year. Then from the counties at large he has taken a tribute; from Oxfordshire, for example, ?0 for a hawk, 20 shillings for a sumpter horse, ?3 for dogs and 6 sesters of honey;(70*) from Worcestershire ?0 or a Norway hawk, 20 shillings for a sumpter horse;(71*) from Warwickshire ?3 for 'the dog's custom,' 20 shillings for a sumpter horse, ?0 for a hawk and 24 sesters of honey.(72*) The farm of the county that the sheriff pays is made up out of obscure old items of this sort. Many men who are not the king's tenants must assist him in his hunting, must help in the erection of his deer-hays.(73*) Then there are the avera and the inwards that are exacted by the king or his sheriff from sokemen who are not the king's men. The sheriff also is entitled to provender rents; out of 'the revenues which belong to the shrievalty' of Wiltshire, Edward of Salisbury gets pigs, wheat, barley, oats, honey, poultry, eggs, cheeses, lambs and fleeces; and besides this he seems to have 'reveland' which belongs to him as sheriff.(74*) Then we see curious payments in money and renders in kind made to some royal or some comital manor by the holders of other manors. In Devonshire, Charlton which belongs to the Bishop of Coutances, Honiton which belongs to the Count of Mortain, Smaurige which belongs to Ralph de Pomerai, Membury which belongs to William Chevre, Roverige which belongs to St Mary of Rouen, each of these manors used to pay twenty pence a year to the royal manor of Axminster.(75*) In Somersetshire there are manors which have owed consuetudines, masses of iron and sheep and lambs to the royal manors of South Perrott and Cury, or the comital manors of Crewkerne and Dulverton.(76*) Then again, we find that pasture rights are connected with justiciary rights: -- Godwin had a manor in Hampshire to which belonged the third penny of six hundreds, and in all the woods of those six hundreds he had free pasture and pannage;(77*) the third penny of three hundreds in Devonshire and the third animals of the moorland pastures were annexed to the manor of Molland.(78*) Many things seems to indicate that the distinction between private rights and governmental powers has been but faintly perceived in the past.
If now we look at that English state which is the outcome of a purely English history, we see that it has already taken a pyramidal or conical shape. It is a society of lords and men. At its base are the cultivators of the soil, at its apex is the king. This cone is as yet but low. Even at the end of William's reign the peasant seldom had more than two lords between him and the king, but already in the Confessor's reign he might well have three.(79*) Also the cone is obtuse: the angle of its apex will grow acuter under Norman rulers. We can indeed obtain no accurate statistics, but the number of landholders who were King Edward's men must have been much larger than the tale of the Norman tenants in chief. In the geographical distribution of the large estates under William there is but little more regularity than there was under his predecessor. In Cheshire and in Shropshire the Conqueror formed two great fiefs for Hugh of Avranches and Roger of Montgomery, well compacted fiefs, the like of which England had not yet seen. But the units which William found in existence and which he distributed among his followers were for the more part discrete units, and seldom did the Norman baron acquire as his honour any wide stretch of continuous territory. Still a great change took place in the substance of the cone, or, if that substance is made up of lords and men and acres, then in the nature of, or rather the relation between, the forces which held the atoms together. Every change mikes for symmetry simplicity, consolidation. Some of these changes will seem to us predestined. To speculate as to what would have happened had Harold repelled the invader would be vain, and certainly we have no reason for believing that in that case the formula of dependent tenure would ever have got hold of every acre of English land and every right in English land. The law of 'land loans' (Lehnrecht) would hardly have become our only land law , had not a conqueror enjoyed an unbounded power, or a power bounded only by some reverence for the churches, of deciding by what men and on what terms every rood of England should be holden. Had it not been for this, we should surely have had some franc alleu to oppose to the fief, some Eigen to oppose to the Lehn. But if England was not to be for ever a prey to rebellions and civil wars, the power of the lords over their men must have been -- not indeed increased, but -- territorialized; the liberty of 'going with one's land to whatever lord one chose' must have been curtailed. As yet the central force embodied in the kingship was too feeble to deal directly with every one of its subjects, to govern them and protect them. The intermediation of the lords was necessary; the state could not but be pyramidal; and, while this was so, the freedom that men had of forsaking one lord for another, of forsaking even the king for the ambitious earl, was a freedom that was akin to anarchy. Such a liberty must have its wings clipt; free contract must be taught to know its place; the lord's hold over the man's land must become permanent. This change, if it makes at first for a more definite feudalism, or (to use words more strictly) if it substitutes feudalism for vassalism, makes also for the stability of the state, for the increase of the state's power over the individual, and in the end for the disappearance of feudalism. The freeholder of the thirteenth century is much more like the subject of a modern state than was the free man of the Confessor's day who could place himself and his land under the power and warranty of whatever lord he chose. Lordship in becoming landlordship begins to lose its most dangerous element; it is ceasing to be a religion, it is becoming a 'real' right, a matter for private law. Again, we may guess, if we please, that but for the Norman Conquest the mass of the English peasantry would never have fallen so low as fall it did. The 'sokemen' would hardly have been turned into 'villeins,' the 'villeins' would hardly have become 'serfs.' And yet the villeins of the Confessor's time were in a perilous position. Already they were occupying lands which for two most important purposes were reckoned the lands of their lord, land for which their lords gelded, lands for which their lords fought. Even in an English England the time might have come when the state, refusing to look behind their lords, would have left the protection of their rights to a Hofrecht, to 'the custom of the manor.'
It is, we repeat it, vain to speculate about such matters, for we know too little of the relative strength of the various forces that were at work, and an accident, a war, a famine, may at any moment decide the fate, even the legal fate, of a great class. And above all there is the unanswerable question whether Harold or any near successor of his would or could have done what William did so soon as the survey was accomplished, when he proved that, after all, the pyramid was no pyramid and that every particle of it was in immediate contact with him, and 'there came to him all the land-sitting men who were worth aught from over all England, whosesoever men they were, and they bowed themselves to him, and became this man's men.'(80*)
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