New feudal tenures may have had a tribal root. St. Oswald’s tenants for three successive lives.
Reference may, however, be incidentally made to the numerous cases in which, in order to describe the nature of the tenure of socmanni and others under what were perhaps new conditions, the fact was recorded in varying phrases whether this person or that could or could not leave or sell his land. Of some it is stated ‘possunt recedere,’ of others ‘non possunt recedere’—of some ‘possunt vendere,’ of others ‘non possunt vendere.’ Though these tenures may have been comparatively modern and may belong to a period of advanced feudal conditions, still it may be possible that some trait of tribal custom may lurk at the root of the distinction. From the manorial point of view, it was necessary to record of the socmanni whether they had only limited rights in the land subject to the performance of services and ‘consuetudines’ (which, by the way, seem to have been very much like those of the villani) or whether they were permanent freeholders who could sell their holdings and leave the land when they liked.[325] The position of the tenants in this respect was probably dependent upon the tenure under which they held, i.e. upon whether they were tenants with only life interests, or for successive lives, or, as we should say, tenants in fee. After the devastations of war many new tenants must have been put upon desolated manors, and Professor Maitland has very rightly laid stress in another connection on the traditional habit of granting leases for three lives only, so that a holding might ultimately return to the lord. He has pointed out that when Bishop Oswald (A.D. 962-992), exercising manorial rights over the great domain of the Church of Worcester made these leases to thanes on certain services for three successive lives (i.e. for the lives of father, son, and grandson) he did it expressly for the purpose of securing to his successor full power to renew them or not.[326] And from a tribal point of view it may be a pertinent question whether the restriction to the three generations had not some indirect connection with the tribal custom or instinct, so often alluded to, which gave to the fourth generation of uninterrupted occupation fixity of tenure and status.
Tribal custom known to Danes and Normans.
Recurring to the scattered cases of thanes holding ‘in paragio’ and by no means confined to the Danish districts,[327] it was necessary to state in the Domesday records, as in the case of the socmanni, whether they had or had not power to leave or to sell, and it may be useful that we should be reminded by these cases, in which feudal custom had possibly arisen out of tribal custom, that tribal custom was not unknown to the Danish and Norman conquerors of England. The Danish immigrants came from a district in which tribal custom was still fresh and vigorous. The Normans too, as is shown by the so-called Laws of Henry I., found Anglo-Saxon custom by no means altogether alien to their own instincts.
Before concluding this essay perhaps a further observation should be made.
We have learned in the course of this inquiry that it does not do to take too insular a view of Anglo-Saxon conditions. The similarity of wergelds, and indeed of tribal custom generally, has throughout become very apparent. But perhaps it is hardly more striking than the similarity in the modifications of tribal custom found in the laws on both sides of the Channel.
In their migrations and conquests the conquering tribes found themselves everywhere breathing a moral atmosphere in which it was difficult for the old tribal instincts to live. In such matters as the responsibility of a master for his slave’s homicides and of relatives for their kinsman’s crimes we have watched as it were modifications of tribal custom in the course of being made, here and there, on almost identical lines. May it not have been so also in regard to the important matter of the division of classes?
Romanising and Christian influences apart from the manor.
If we have recognised rightly the tribal principles originally at the root of the distinction between the twelve-hynde and twy-hynde classes there is no reason why we should not recognise also that besides the potent force of manorial management there may have been other influences at work widening the gulf between the two classes, and, so to speak, reducing to a level the members of each class by breaking away the rungs of the ladder between them.
It must not be overlooked that in the earliest Continental laws most nearly contemporary with those of Kent—Alamannic, Bavarian, Burgundian, and Wisigothic—the divisions of society have a very artificial look, as though largely based upon wealth rather than the tribal principles of kindred.