PREFACE.
The greater part of what is in this book was written in order that it might be included in the History of English Law before the Time of Edward I. which was published by Sir Frederick Pollock and me in the year 1895. Divers reasons dictated a change of plan. Of one only need I speak. I knew that Mr Round was on the eve of giving to the world his Feudal England, and that thereby he would teach me and others many new lessons about the scheme and meaning of Domesday Book. That I was well advised in waiting will be evident to everyone who has studied his work. In its light I have suppressed, corrected, added much. The delay has also enabled me to profit by Dr Meitzen's _Siedelung und Agrarwesen der Germanen_[1], a book which will assuredly leave a deep mark upon all our theories of old English history.
The title under which I here collect my three Essays is chosen for the purpose of indicating that I have followed that retrogressive method 'from the known to the unknown,' of which Mr Seebohm is the apostle. Domesday Book appears to me, not indeed as the known, but as the knowable. The Beyond is still very dark: but the way to it lies through the Norman record. A result is given to us: the problem is to find cause and process. That in some sort I have been endeavouring to answer Mr Seebohm, I can not conceal from myself or from others. A hearty admiration of his English Village Community is one main source of this book. That the task of disputing his conclusions might have fallen to stronger hands than mine I well know. I had hoped that by this time Prof. Vinogradoff's Villainage in England would have had a sequel. When that sequel comes (and may it come soon) my provisional answer can be forgotten. One who by a few strokes of his pen has deprived the English nation of its land, its folk-land, owes us some reparation. I have been trying to show how we can best bear the loss, and abandon as little as may be of what we learnt from Dr Konrad von Maurer and Dr Stubbs.
For my hastily compiled Domesday Statistics I have apologized in the proper place. Here I will only add that I had but one long vacation to give to a piece of work that would have been better performed had it been spread over many years. Mr Corbett, of King's College, has already shown me how by a little more patience and ingenuity I might have obtained some rounder and therefore more significant figures. But of this it is for him to speak.
Among the friends whom I wish to thank for their advice and assistance I am more especially grateful to Mr Herbert Fisher, of New College, who has borne the tedious labour of reading all my sheets, and to Mr W. H. Stevenson, of Exeter College, whose unrivalled knowledge of English diplomatics has been generously placed at my service.
F. W. M.
20 January, 1897.
CONTENTS.
Domesday Book and its satellites, 1. Domesday and legal history, 2. Domesday a geld book, 3. The danegeld, 3. The inquest and the geld system, 5. Importance of the geld, 7. Unstable terminology of the record, 8. The legal ideas of century xi. 9.
§ 1. Plan of the Survey, pp. 9-26.
The geographical basis, 9. The vill as the unit, 10. Modern and ancient vills, 12. Omission of vills, 13. Fission of vills, 14. The nucleated village and the vill of scattered steads, 15. Illustration by maps, 16. Size of the vill, 17. Population of the vill, 19. Contrasts between east and west, 20. Small vills, 20. Importance of the east, 21. Manorial and non-manorial vills, 22. Distribution of free men and serfs, 23. The classification of men, 23. The classes of men and the geld system, 24. Our course, 25.
§ 2. The Serfs, pp. 26-36.
The servus of Domesday, 26. Legal position of the serf, 27. Degrees of serfdom, 27. Predial element in serfdom, 28. The serf and criminal law, 29. Serf and villein, 30. The serf of the Leges, 30. Return to the servus of Domesday, 33. Disappearance of servi, 35.
§ 3. The Villeins, pp. 36-66.
The boors or coliberts, 36. The continental colibert, 37. The English boor, 37. Villani, bordarii, cotarii, 38. The villein's tenement, 40. Villeins and cottiers, 41. Freedom and unfreedom of the villani, 41. Meaning of freedom, 42. The villein as free, 43. The villein as unfree, 45. Anglo-Saxon free-holding, 46. Free-holding and seignorial rights, 47. The scale of free-holding, 49. Free land and immunity, 50. Unfreedom of the villein, 50. Right of recapture, 50. Rarity of flight, 51. The villein and seignorial justice, 52. The villein and national justice, 52. The villein and his land, 53. The villein's land and the geld, 54. The villein's services, 56. The villein's rent, 57. The English for villanus, 58. Summary of the villein's position, 60. Depression of the peasants, 61. The Normans and the rustics, 61. Depression of the sokemen, 63. The peasants on the royal demesne, 65.
§ 4. The Sokemen, pp. 66-79.
Sochemanni and liberi homines, 66. Lord and man, 67. Bonds between lord and man, 67. Commendation, 69. Commendation and protection, 70. Commendation and warranty, 71. Commendation and tenure, 71. The lord's interest in commendation, 72. The seignory over the commended, 74. Commendation and service, 74. Land-loans and services, 75. The man's consuetudines, 76. Nature of consuetudines, 78. Justiciary consuetudines, 78.
§ 5. Sake and Soke, pp. 80-107.
Sake and soke, 80. Private jurisdiction in the Leges, 80. Soke in the Leges Henrici, 81. Kinds of soke in the Leges, 82. The Norman kings and private justice, 83. Sake and soke in Domesday, 84. Meaning of soke, 84. Meaning of sake, 84. Soke as jurisdiction, 86. Seignorial justice before the Conquest, 87. Soke as a regality, 89. Soke over villeins, 90. Private soke and hundredal soke, 91. Hundredal and manorial soke, 92. The seignorial court, 94. Soke and the earl's third penny, 95. Soke and house-peace, 97. Soke over houses, 99. Vendible soke, 100. Soke and mund, 100. Justice and jurisdiction, 102. Soke and commendation, 103. Sokemen and 'free men,' 104. Holdings of the sokemen, 106.
§ 6. The Manor, pp. 107-128.
What is a manor? 107. Manerium a technical term, 107. Manor and hall, 109. Difference between manor and hall, 110. Size of the maneria, 110. A large manor, 111. Enormous manors--Leominster, Berkeley, Tewkesbury, Taunton, 112. Large manors in the Midlands, 114. Townhouses and berewicks attached to manors, 114. Manor and soke, 115. Minute manors in the west, 116. Minute manors in the east, 117. The manor as a peasant's holding, 118. Definition of a manor, 119. The manor and the geld, 120. Classification of men for the geld, 122. Proofs of connexion of the manor with the geld, 122. Land gelds in a manor, 124. Geld and hall, 124. The lord and the man's taxes, 125. Distinction between villeins and sokemen, 125. The lord's subsidiary liability, 126. Manors distributed to the Frenchmen, 127. Summary, 128.
§ 7. Manor and Vill, pp. 129-150.
Manorial and non-manorial vills, 129. The vill of Orwell, 129. The Wetherley hundred of Cambridgeshire, 131. The Wetherley sokemen, 134. The sokemen and seignorial justice, 135. Changes in the Wetherley hundred, 135. Manorialism in Cambridgeshire, 136. The sokemen and the manors, 137. Hertfordshire sokemen, 138. The small maneria, 138. The Danes and freedom, 139. The Danish counties, 139. The contrast between villeins and sokemen, 140. Free villages, 141. Village communities, 142. The villagers as co-owners, 142. The waste land of the vill, 143. Co-ownership of mills and churches, 144. The system of virgates in a free village, 144. The virgates and inheritance, 145. The farm of the vill, 146. Round sums raised from the villages, 147. The township and police law, 147. The free village and Norman government, 149. Organization of the free village, 149.
§ 8. The Feudal Superstructure, pp. 150-172.
The higher ranks of men, 150. Dependent tenure, 151. Feudum, 152. Alodium, 153. Application of the formula of dependent tenure, 154. Military tenure, 156. The army and the land, 157. Feudalism and army service, 158. Punishment for default of service, 159. The new military service, 160. The thegns, 161. Nature of thegnship, 163. The thegns of Domesday, 165. Greater and lesser thegns, 165. The great lords, 166. The king as landlord, 166. The ancient demesne, 167. The comital manors, 168. Private rights and governmental revenues, 168. The English state, 170.
§ 9. The Boroughs, pp. 172-219.
Borough and village, 172. The borough in century xiii., 173. The number of the boroughs, 173. The aid-paying boroughs of century xii, 174. List of aids, 175. The boroughs in Domesday, 176. The borough as a county town, 178. The borough on no man's land, 178. Heterogeneous tenures in the boroughs, 179. Burgages attached to rural manors, 180. The burgess and the rural manor, 181. Tenure of the borough and tenure of land within the borough, 181. The king and other landlords, 182.
The oldest burh, 183. The king's burh, 184. The special peace of the burh, 184. The town and the burh, 185. The building of boroughs, 186. The shire and its borough, 186. Military geography, 187. The Burghal Hidage, 187. The shire's wall-work, 188. Henry the Fowler and the German burgs, 189. The shire thegns and their borough houses, 189. The knights in the borough, 190. Burh-bót and castle-guard, 191.
Borough and market, 192. Establishment of markets, 193. Moneyers in the burh, 195. Burh and port, 195. Military and commercial elements in the borough, 196. The borough and agriculture, 196. Burgesses as cultivators, 197. Burgage tenure, 198. Eastern and western boroughs, 199. Common property of the burgesses, 200. The community as landholders, 200. Rights of common, 202. Absence of communalism in the borough, 202. The borough community and its lord, 203. The farm of the borough, 204. The sheriff and the farm of the borough, 205. The community and the geld, 206. Partition of taxes, 207. No corporation farming the borough, 208. Borough and county organization, 209. Government of the boroughs, 209. The borough court, 210. The law-men, 211. Definition of the borough, 212. Mediatized boroughs, 212. Boroughs on the king's land and other boroughs, 215. Attributes of the borough, 216. Classification of the boroughs, 217. National element in the boroughs, 219.
ESSAY II.
ENGLAND BEFORE THE CONQUEST.
Object of this essay, 220. Fundamental controversies over Anglo-Saxon history, 221. The Romanesque theory unacceptable, 222. Feudalism as a normal stage, 223. Feudalism as progress and retrogress, 224. Progress and retrogress in the history of legal ideas, 224. The contact of barbarism and civilization, 225. Our materials, 226.
§ 1. Book-land and the Land-book, pp. 226-244.
The lands of the churches, 226. How the churches acquired their lands, 227. The earliest land-books, 229. Exotic character of the book, 230. The book purports to convey ownership, 230. The book conveys a superiority, 231. A modern analogy, 232. Conveyance of superiorities in early times, 233. What had the king to give? 234. The king's alienable rights, 234. Royal rights in land, 235. The king's feorm, 236. Nature of the feorm, 237. Tribute and rent, 239. Mixture of ownership and superiority, 240. Growth of the seignory, 241. Book-land and church-right, 242. Book-land and testament, 243.
