第 4 页

NOTES:

1. D. B. ii. 109 b.: 'Hundret de Grenehou 14 letis.' 1b. 212 b. 'Hundret et Dim. de Clakelosa de 10 leitis.' Round, Feudal England, 101.

2. Some of them are mentioned by Ellis, Introduction, i. 34-9.

3. D. B. i. 184 b: 'Haec terra non geldat nec consuetudinem dat nec in aliquo hundredo iacet': i. 157 'Haec terra nunquam geldavit nec alicui hundredo pertinet nec pertinuit': i. 357 b 'Hae duae carucatae non siunt in numero alicuius hundredi neque habent pares in Lincolescyra.'

4. D. B. i. 207 b: 'Jacet in Bedefordscira set geldum dat in Huntedonscire'; i. 61 b 'Jacet et appreciata est in Gratentun quod est in Oxenefordscire et tamen dat scotum in Berchescire'; i. 132 b, the manor of Weston 'lies in, Hitchin which is in Hertfordshirc, but its wara 'lies in' Bedfordshire, i.e. it pays geld, it 'defends itself' in the latter county; i. 189 b, the wara of a certain hide 'lies in' Hinxton which is in Cambridgeshire, but the land belongs to the manor of Chesterford and therefore is valued in Essex. D. B. i. 178: five hides 'geld and plead' in Worcestershire, but pay their farm in Herefordshire.

5. D. B. i. 157 b: 'Has [terras in Oxenefordscire] coniunxit terrae suae in Glowecestrescire'; i. 209 b 'foris misit de hundredo ubi se defendebat, T. R. E.'; i. 50 'et misit foras comitatum et misit in Wiltesire.' See also Ellis, i. 36.

6. See Round, Feudal England, p. 118. Mr Round seems to think that the commissioners made a circuit through the hundreds. I doubt they did more than their successors the justices in eyre were wont to do, that is, they held in the shire-town a moot which was attended by (1) the magnates of the shire who spoke for the shire, (2) a jury from every hundred, (3) a deputation of villani from every township. See the Yorkshire and Lincolnshire Clamores (i. 375) where we may find successive entries beginning with (a) Scyra testatur, (b) Westreding testatur, (c) Testatur wapentac. Strikingly similar entries are found on the eyre rolls. As Sir F. Pollock (Eng. Hist. Rev. xi. 213) remarks, it is misleading to speak of the Domesday 'survey'; Domesday inquest would be better.

7. See Round, Feudal England, p. 44.

8. Inquis. Com. Cantab. 60.

9. See the table in Round, Feudal England, p. 50. I had already selected this beautiful specimen before Mr Round's book appeared. He has given several others that are quite as neat.

10. Of course we take no account of urban parishes.

11. Eyton's laborious studies have made this plain as regards some counties widely removed from each other; still, e.g. in his book On Somerset, he has now and again to note that names which appear in D. B. are obsolete.

12. Inq. Com. Cant. 60-1.

13. D. B. i. 31.

14. D. B. i. 41. We shall return to this matter hereafter.

15. A good many cases will be found in Essex and Suffolk.

16. Inq. Com. Cantab. 51, 53.

17. Ibid. 47.

18. Ibid. 29.

19. Maitland, Surnames of English Villages, Archaeological Review, iv. 233.

20. We do not mean to imply that there were not wide stretches of waste land which were regarded as being 'extra-villar,' or common to several vills.

21. Hist. Eng. Law, i. 547.

22. This of course would not be true of cases in which the lands of various villages were intermixed in one large tract of common field. As to these 'discrete vills,' see Hist. Eng. Law, i. 549.

23. This name-giving cluster will usually contain the parish church and so will enjoy a certain pre-eminence. But we are to speak of a time when parish churches were novelties.

24. See Meitzen, Siedelung und Agrarwesen der Germanen, especially ii, 119 ff.

25. When the hamlets bear names with such ancient suffixes as -ton, -ham, -by, -worth, -wick, -thorpe, this of course is in favour of their antiquity. On the other hand, if they are known merely by family names such as Styles's, Nokes's, Johnson's or the like, this, though not conclusive evidence of, is compatible with, their modernity. Meitzen thinks that in Kent and along the southern shore the German invaders founded but few villages. The map does not convince me that this inference is correct.

26. When more than five-and-twenty team-lands or thereabouts are ascribed to a single place, we shall generally find reason to believe that what is being described is not a single vill. See above, p. 36.

27. Inq. Com. Cant. 51 fol. In a few cases our figures will involve a small element of conjecture.

28. D. B. i. 248. We have tried to avoid vills in which it is certain or probable that some other tenant in chief had an estate.

29. D. B. i. 88. We have tried to make sure that no tenant in chief save the bishop had land in any of these vills, and this we think fairly certain, except as regards Harptree and Norton. There are now two Harptrees, East and West, and four or more Nortons.

30. We take the figures from Ellis, Introduction, ii. 41 7 ff.

31. Very possibly this figure is too low. There is reason to think that some the free men and sokemen of these counties get counted twice or thrice over because they hold land under several different lords. On the other hand Ellis (Introduction, ii. 491) would argue that the figure is too high. But the words Alii ibi tenent which occur at the end of numerous entries mean, we believe, not that there are in this vill other unenumerated tillers of the soil, but that the vill is divided between several tenants in chief.

32. D. B. i. 162 b.

33. Ellis's figures are: England 283, 242: the three counties, 72,883.

34. We take these figures from Ellis.

35. Lay Subsidy, 25 Edw. 1. (Yorkshire Archaeological Society), pp. xxxi-xxxv. Fractions of a pound are neglected.

36. Powell, The Rising in East Anglia, 120-3. The great decrease between 1377 and 1381 in the number of persons taxed, we must not try to explain.

37. See the serviceable maps in Seebohm, Village Community, 86. But they seem to treat Yorkshire unfairly. It has 5.5 per cent of sokemen.

38. This is found at the beginning of the Inquisitio Eliensis; D. B. iv. 497; Hamilton, Inquisitio, 97. See Round, Feudal England, 133 ff.

39. We must not hastily draw the inference that every party of commissioners received the same set of instructions. Perhaps, for example, carucates, not hides, were mentioned in the instructions given to those commissioners who were to visit the carucated counties. Perhaps the non-appearance of servi in Yorkshire and Lincolnshire may be due to no deeper cause.

2. THE SERFS

The existence of some 25,000 serfs is recorded. In the thirteenth century servus and villanus are, at least among lawyers, equivalent words. The only unfree man is the 'serf-villein' and the lawyers are trying to subject him to the curious principle that he is the lord's chattel but a free man in relation to all but his lord.(1*) It is far otherwise in Domesday Book. In entry after entry and county after county the servi are kept well apart from the villani, bordarii, cotarii. Often they are mentioned in quite another context to that in which the villani are enumerated. As an instance we may take a manor in Surrey;(2*) -- 'In demesne there are 5 teams and there are 25 villani and 6 bordarii with 14 teams. There is one mill of 2 shillings and one fishery and one church and 4 acres of meadow, and wood for 150 pannage pigs, and 2 stone-quarries of 2 shillings and 2 nests of hawks in the wood and 10 servi.' Often enough the servi are placed between two other sources of wealth, the church and the mill. In some counties they seem to take precedence over the villani; the common formula is 'In dominio sunt a curucae et b servi et c villani et d bordarii cum e carucis.' But this is delusive; the formula is bringing the servi into connexion with the demesne teams and separating them from the teams of the tenants. We must render it thus -- 'On the demesne there are a teams and b servi; and there are c villani and d bordarii with e teams.' Still we seem to see a gently graduated scale of social classes, villani, bordarii, cotarii, servi, and while the jurors of one county will arrange them in one fashion, the jurors of another county may adopt a different scheme. Thus in their classification of mankind the jurors will sometimes lay great stress on the possession of plough oxen. In Hertfordshire we read: -- 'There are 6 teams in demesne and 41 villani and 17 bordarii have 20 teams... there are 22 cotarii and 12 servi.(3*) -- 'The priest, 13 villani and 4 bordarii have 6 teams... there are two cotarii and 4 servi.'(4*) -- 'The priest and 24 villani have 13 teams... there are 12 bordarii, 16 cotarii and 11 servi.'(5*) A division is in this instance made between the people who have oxen and the people who have none; villani have oxen, cotarii and servi have none; sometimes the bordarii stand above this line, sometimes below it. Of the legal position of the servus Domesday Book tells us little or nothing; but earlier and later documents oblige us to think of him as a slave, one who in the main has no legal rights. He is the the體 of the Anglo-Saxon dooms, the servus of the ecclesiastical canons. But though we do right in calling him a slave, still we might well be mistaken were we to think of the line which divides him from other men as being as sharp as the line which a mature jurisprudence will draw between thing and person. We may well doubt whether this principle -- 'The slave is a thing, not a person' -- can be fully understood by a grossly barbarous age. It implies the idea of a person, and in the world of sense we find not persons but men. Thus degrees of servility are possible. A class may stand, as it were, half-way between the class of slaves and the class of free men. The Kentish law of the seventh century as it appears in the dooms of AEthelbert,(6*) like many of its continental sisters, knows a class of men who perhaps are not free men and yet are not slaves; it knows the laet as well as the the體. From what race the Kentish laet has sprung, and how, when it comes to details, the law will treat him -- these are obscure questions, and the latter of them cannot be answered unless we apply to him what is written about the laeti, liti and lidi of the continent. He is thus far a person that he has a small wergild but possibly he is bound to the soil. Only in AEthelbert's dooms do we read of him. From later days, until Domesday Book breaks the silence, we do not obtain any definite evidence of the existence of any class of men who are not slaves but none the less are tied to the land. Of men who are bound to do heavy labour services for their lords we do hear, but we do not hear that if they run away they can be captured and brought back. As we shall see by and by, Domesday Book bears witness to the existence of a class of buri, burs, coliberti, who seem to be distinctly superior to the servi, but distinctly inferior to the villeins, bordiers and cottiers. It is by no means impossible that they, without being slaves, are in a very proper and intelligible sense unfree men, that they have civil rights which they can assert in courts of law, but that they are tied to the soil. The gulf between the seventh and the eleventh centuries is too wide to allow of our connecting them with the laet of AEthelbert's laws, but still our documents are not exhaustive enough to justify us in denying that all along there has been a class (though it can hardly have been a large class) of men who could not quit their tenements and yet were no slaves. As we shall see hereafter, liberty was in certain contexts reckoned as a matter of degree; even the villanus, even the sochemannus, was not for every purpose liber homo. When this is so, the the體 or servus is like to appear as the unfreest of persons rather than as no person but a thing.

In the second place, we may guess that from a remote time there has been in the condition of the the體 a certain element of praediality. The slaves have not been worked in gangs nor housed in barracks.(7*) The servus has often been a servus casatus, he has had a cottage or even a manse and yardland which de facto he might call his own. There is here no legal limitation of his master's power. Some slave trade there has been; but on the whole it seems probable that the the體 has been usually treated as annexed to a tenement. The duties exacted of him from year to year have remained constant. The consequence is that a free man in return for a plot of land may well agree to do all that a the體 usually does and see in this no descent into slavery. Thus the slave gets a chance of acquiring what will be as a matter of fact a peculium. In the seventh century the church tried to turn this matter of fact into matter of law. 'Non licet homini,' says Theodore's Penitential, 'a servo tollere pecuniam, quam ipse labore suo adquesierit.'(8*) We have no reason for thinking that this effort was very strenuous or very successful, or that the law of the eleventh century allowed the servus any proprietary rights; and yet he might often be the occupier of land and of chattels with which, so long as he did his customary services, his lord would seldom meddle. In the third place, we may believe that for some time past police law and punitive law have been doing something to conceal, if not to obliterate, the line which separates the slave from other men. A mature jurisprudence may be able to hold fast the fundamental principle that a slave is not a person but a thing, while at the same time it both limits the master's power of abusing his human chattel and guards against those dangers which may arise from the existence of things which have wills, and sometimes bad wills, of their own. But an immature jurisprudence is incapable of this exploit. It begins to play fast and loose with its elementary notions. It begins to punish the criminous slave without being quite certain as to how far it is punishing him and how far it is punishing his master. Confusion is easy, for if the slave be punished by death or mutilation, his master will suffer, and a pecuniary mulct exacted from the slave is exacted from his master. Learned writers have come to the most opposite opinions as to the extent to which the Anglo-Saxon dooms by their distribution of penalties recognize the personality of the the體. But this is not all. For a long time past the law has had before it the difficult problem of dealing with crimes and delicts committed by poor and economically dependent free men, men who have no land of their own, who are here to-day and gone to-morrow, 'men from whom no right can be had.' It has been endeavouring to make the lords answerable to a certain extent for the misdeeds of their free retainers. If a slave is charged with a crime his master is bound to produce him in court. But the law requires that the lord shall in very similar fashion produce his free 'loaf eater,' his mainpast, nay, it has been endeavouring to enforce the rule that every free man who has no land of his own shall have a lord bound to produce him when he is accused. Also it has been fostering the growth of private justice. The lord's duty of producing his men, bond and free, has been becoming the duty of holding a court in which his men, free and bond, will answer for themselves. How far this process had gone in the days of the Confessor is a question to which we shall return.(9*) For all this, however, we may say with certainty that in the eleventh century the servi were marked off from all other men by definite legal lines. What is more, we may say that every man who was not a the體 was in some definite legal sense a free man. This sharp contrast is put before us by the laws of Cnut as well as by those of his predecessors. If a freeman works on a holiday, he pays for it with his healsfang; if a the體nian does the like, he pays for it with his hide or his hide-geld.(10*) Equally sharp is the same distinction in the Leges Henrici, and this too in passages which, so far as we know, are not borrowed from Anglo-Saxon documents. For many purposes 'aut servus aut liber homo' is a perfect dilemma. There is no confusion whatever between the villani and the servi. The villani are 'viles et inopes personae' but clearly enough they are liberi homines. So also in the Quadripartitus, the Latin translation of the ancient dooms made in Henry I's reign, there is no confusion about this matter; the the體man becomes a servus, while villanus is the equivalent for ceorl. The Norman writers still tell how according to the old law of the English the villanus might become a thegn if he acquired five hides of land;(11*) at times they will put before us villani and thaini or even villani and barones as an exhaustive classification of free men.(12*) Let us learn what may be learnt of the servus from the Leges Henrici. Every man is either a liber homo or a servus.(13*) Free men are either two-hundred-men or twelve-hundredmen; perhaps we ought to add that there is also a class of six-hundred-men.(14*) A serf becomes such either by birth or by some event, such as a sale into slavery, that happens in his lifetime.(15*) Servile blood is transmitted, from father to child; some lords hold that it is also transmitted by mother to child.(16*) If a slave is to be freed this should be done publicly, in court, or church or market, and lance and helmet or other the arms of free men should be given him, while he should give his lord thirty pence, that is the price of his skin, as a sign that he is henceforth 'worthy of his hide.' On the other hand, when a free man falls into slavery then also there should be a public ceremony. He should put his head between his lord's hands and should receive as the arms of slavery some bill-hook or the like.(17*) Public ceremonies are requisite, for the state is endangered by the uncertain condition of accused criminals; the lords will assert at one moment that their men are free and at the next moment that these same men are slaves.(18*) The descent of a free man into slavery is treated as no uncommon event; the slave may well have free kinsfolk.(19*) But, to come to the fundamental rule, the villanus, the meanest of free men, is a two-hundred-man, that is to say, if he be slain the very substantial wergild of 200 Saxon shillings or ? must be paid to his kinsfolk,(20*) while a man-b髏 of 30 shillings is paid to his lord.(21*) But if a servus be slain his kinsfolk receive the comparatively trifling sum of 40 pence while the lord gets the man-b髏 of 20 shillings.(22*) That the serf's kinsfolk should receive a small sum need not surprise us. Germanic law has never found it easy to carry the principle that the slave is a chattel to extreme conclusions; but the payment seems trifling and half contemptuous; at any rate the life of the villein is worth the life of twenty-four serfs.(23*) Then again, it is by no means certain that a lord cannot kill his serf with impunity. 'If,' says our text, 'a man slay his own serf, his is the sin and his is the loss': -- we may interpret this to mean that he has sinned but sinned against himself.(24*) Then again, for the evil deeds of his slave the master is in some degree responsible. If my slave be guilty of a petty theft not worthy of death, I am bound to make restitution; if the crime be a capital one and he be taken handhaving, then he must 'die like a free man.'(25*) If my slave be guilty of homicide, my duty is to set him free and hand him over to the kindred of the slain, but apparently I may purchase his life by a sum of 40 shillings, a sum much less than the wer of the slain man.(26*) We must not be too hard on the owners of delinquent slaves. There are cases, for example, in which, several slaves having committed a crime, one of them chosen by lot must suffer for the sins of all.(27*) Our author is borrowing from the laws of several different centuries and does not arrive at any neat result; nor must we wonder at this, for the problems presented to jurisprudence by the crimes and delicts of slaves are very intricate. Then again, we have the rule that if free men and serfs join in a crime, the whole guilt is to be attributed to the free: he who joins with a slave in a theft has no companion.(28*) On the whole, though the slave is likely to have as a matter of fact a peculium of his own, a peculium out of which he may be able to pay for his offences and even perhaps to purchase his liberty,(29*) the servus of our Leges seems to be in the main a rightless being. We look in vain for any trace of that idea of the relativity of servitude which becomes the core of Bracton's doctrine.(30*) At the same time we observe that many, perhaps most, of the rules which mark the slavish condition of the serf are ancient rules and rules that are becoming obsolete. In the twelfth century the old system of wer and b髏 is already vanishing, though an antiquarian lawyer may yet try to revivify it. When it disappears altogether before the new law, which holds every grave crime to be a felony, and punishes almost every felony with death,(31*) many grand differences between the villein and the serf will have perished. The gallows is a great leveller. If now we recur to the days of the Conquest, we cannot doubt that the law knew a definite class of slaves, and marked them off by many distinctions from the villani and cotarii, and even from the coliberti. Sums that seem high were being paid for men whose freedom was being purchased.(32*) At Lewes the toll paid for the sale of an ox was a halfpenny; on the sale of a man it was fourpence.(33*) In later documents we may sometimes see a distinction well drawn. Thus in the Black Book of Peterborough, compiled in 1127 or thereabouts, we may read how on one of his manors the abbot has eight herdsmen (bovarii), how each of them holds ten acres, has to do labour services and render loaves and poultry. And then we read that each of them must pay one penny for his head if he be a free man (liber homo), while he pays nothing if he be a servus.(34*) This is a well-drawn distinction. Of two men whose economic position is precisely the same, the one may be free, the other a slave, and it is the free man, not the slave, who has to pay a head-penny. Now when the Conqueror's surveyors, or rather the jurors, call a man a servus they are, so it seems to us, thinking rather of his legal status than of his position in the economy of a manor. At any rate we ought to observe that the economic stratification of society may cut the legal stratification. We are accustomed perhaps to suppose that while the villani have lands that are in some sense their own, while they support themselves and their families by tilling those lands, the servus has no land that is in any sense his own, but is fed at his lord's board, is housed in his lord's court, and spends all his time in the cultivation of his lord's demesne lands. Such may have been the case in those parts of England where we hear of but few servi; those few may have been inmates of the lord's house and have had no plots of their own. But such can hardly have been the case in the south-western counties; the servi are too many to be menials. Indeed it would seem that these servi sometimes had arable plots, and had oxen, which were to be distinguished from the demesne oxen of their lords -- not indeed as a matter of law, but as a matter of economic usage.(35*) It is plain that the legal and the economic lines may intersect one another; the menial who is fed by the lord and who must give his whole time to the lord's work may be a free man; the slave may have a cottage and oxen and a plot of arable land, and labour for himself as well as labouring for his lord. Hence a perplexed and uncertain terminology: -- the servus who has land and oxen may be casually called a villanus,(36*) and we cannot be sure that no one whom our record calls a servus has the wergild of a free man. Nor can we be sure that the enumeration of the servi is always governed by one consistent principle. In the shires of Gloucester, Hereford and Worcester we read of numerous ancillae -- in Worcestershire of 677 servi and 101 ancillae(37*) -- and this may make us think that in this district all the able-bodied serfs are enumerated, whether or no they have cottages to themselves.(38*) We may strongly suspect that the king's commissioners were not much interested in the line that separated the villani from the servi, since the lord was as directly answerable for the geld of any lands that were in the occupation of his villeins as he was for the geld of those plots that were tilled for him by his slaves. That there should have been never a the體 in all Yorkshire and Lincolnshire is hardly credible, and yet we hear of no servi in those counties.