With some regrets we must leave the peasants for a while in order that we may glance at the higher strata of society. We may take it as certain that, at least in the eyes of William’s ministers, the ordinary holder of a manor in the time of the Confessor had been holding it under (sub) some lord, if not of (de) some lord. But then the closeness of the connexion between him and his lord, the character of the relation between lord, man and land, had varied much from case to case. Now these matters are often expressed in terms of a calculus of personal freedom. But let us begin with some phrases which seem intelligible enough. The man can, or he can not, ‘sell or give his land’; he can, or he can not, ‘sell or give it without the licence of his lord’; he can sell it if he has first offered it to his lord[140]; he can sell it on paying his lord two shillings[141]. This seems very simple:—the lord can, or (as the case may be) can not, prevent his tenant from alienating the land; he has a right of preemption or he has a right to exact a fine when there is a change of tenants. But then come phrases that are less in harmony with our idea of feudal tenure. The man can not sell his land ‘away from’ his lord[142], he can not give or sell it ‘outside’ a certain manor belonging to his lord[143], or, being the tenant of some church, he can not ‘separate’ his land from the church[144], or give or sell it outside the church[145]
Freeholding and the lord’s rights.
We have perhaps taken for granted under the influence of later law that an alienation will not impair the lord’s rights, and will but give him a new instead of an old tenant. But it is not of any mere substitution such as this that these men of the eleventh century are thinking. They have it in their minds that the man may wish, may be able, utterly to withdraw his land from the sphere of his lord’s rights. Therefore in many cases they note with some care that the man, though he can give or sell his land, can not altogether put an end to such relation as has existed between this land and his lord. He can sell, but some of the lord’s rights will ‘remain,’ in particular the lord’s ‘soke’ over the land (for the present let us say his jurisdiction over the land) will remain[146]. The purchaser will not of necessity become the ‘man’ of this lord, will not of necessity owe him any servitium or consuetudo, but will come under his jurisdiction[147]. Interchanging however with these phrases[148], we have others which seem to point to the same set of distinctions, but to express them in terms of personal freedom. The man can, or else he can not, withdraw from his lord, go away from his lord, withdraw from his lord’s manor; he can or he can not withdraw with his land; he can or can not go to another lord, or go wherever he pleases[149]. Some of these phrases will, if taken literally, seem to say that the persons of whom they are used are tied to the soil; they can not leave the land, or the manor, or the soke. Probably in some of these cases the bond between man and lord is a perpetual bond of homage and fealty, and if the man breaks that bond by refusing the due obedience or putting himself under another lord, he is guilty of a wrong[150]. But of pursuing him and capturing him and reducing him to servitude there can be no talk. Many of these persons who ‘can not recede’ are men of wealth and rank, of high rank that is recognized by law, they are king’s thegns or the thegns of the churches, they are ‘twelve-hundred men[151].’ However, it is not the man’s power to leave his lord so much as the power to leave his lord and take his land with him, that these phrases bring to our notice; or rather the assumption is made that no one will want to leave his lord if he must also leave his land behind him. And then this power of taking land from this lord and bringing it under another lord is conceived as an index of personal freedom. Thus we read: ‘These men were so free that they could go where they pleased[152],’ and again, ‘Four sokemen held this land, of whom three were free, while the fourth held one hide but could not give or sell it[153].’ Not that no one is called a liber homo unless he has this power of ‘receding’ from his lord; far from it; all is a matter of degree; but the free man is freer if he can ‘go to what lord he pleases,’ and often enough the phrases ‘X tenuit et liber homo fuit,’ ‘X tenuit libere,’ ‘X tenuit ut liber homo’ seem to have no other meaning than this, that the occupant of the land enjoyed the liberty of taking it with him whithersoever he would. Therefore there is no tautology in saying that the holder of the land was a thegn and a free man, though of course there is a sense, there are many senses, in which every thegn is free[154]. All this talk of the freedom that consists in choosing a lord and subjecting land to him may well puzzle us, for it puzzled the men of the twelfth century. The chronicler of Abingdon abbey had to explain that in the old days a free man could do strange things[155]
The scale of freeholding.
Comparisons may be instituted between the freedom of one free man and that of another:—‘Five thegns held this land of Earl Edwin and could go with their land whither they would, and below them they had four soldiers, who were as free as themselves[156].’ A high degree of liberty is marked when we are told that, ‘The said men were so free that they could sell their land with soke and sake wherever they would[157].’ But there are yet higher degrees of liberty. Of Worcestershire it is written, ‘When the king goes upon a military expedition, if anyone who is summoned stays at home, then if he is so free a man that he has his sake and soke and can go whither he pleases with his land, he with all his land shall be in the king’s mercy[158].’ The free man is the freer if he has soke and sake, if he has jurisdiction over other men. Exceptional privileges, immunities from common burdens, are already regarded as ‘liberties.’ This is no new thing; often enough when the Anglo-Saxon land books speak of freedom they mean privilege.
Free land.
The idea of freedom is equally vague and elastic if, instead of applying it to men, we apply it to land or the tenure of land. Two bordarii are now holding a small plot; ‘they themselves held it freely in King Edward’s day[159].’ Here no doubt there has been a fall; but how deep a fall we can not be sure. To say that a man’s land is free may imply far more freedom than freehold tenure implies in later times; it may imply that the bond between him and his lord, if indeed he has a lord, is of a purely personal character and hardly gives the lord any hold over the land[160]. But this is not all. Perfect freedom is not attained so long as the land owes any single duty to the state. Often enough—but exactly how often it were no easy task to tell—the libera terra of our record is land that has been exempted even from the danegeld; it is highly privileged land[161]. Let us remember that at the present day, though the definition of free land or freehold land has long ago been fixed, we still speak as though free land might become freer if it were ‘free of land-tax and tithe rent-charge.’
The unfreedom of the villein.
If now we return to the villanus and deny that he is liber homo and deny also that he is holding freely, we shall be saying little and using the laxest of terms. There are half-a-dozen questions that we would fain ask about him, and there will be no harm in asking them, though Domesday Book is taciturn.
Can the villein be pursued?