§ 8. The Feudal Superstructure.
The higher ranks of men.
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 Book 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.
Dependent tenure.
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 book. 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[618]. The terms of the tenure are but very rarely described, for Domesday Book 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[619]. 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[620]. A few words here and there betray the existence of tenure by knight’s service and of castle guard[621]. In the servientes Regis who have been enfeoffed in divers counties we may see the predecessors of the tenants by serjeanty[622]. 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[623], 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.
Feudum.
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[624]—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 £3 a year and after her death he held it in the same fashion of the king[625].’ 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[626]. 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 only within the sphere of ecclesiastical rights, where the ‘benefice’ will survive until our own day[627].
Alodium.
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 in 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[628]. 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[629]; he may owe service to his lord[630]; he may pay a relief[631]; he may have no power ‘to withdraw himself with his land’ from his lord[632]. 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[633], and in royal charters of a much later day there is talk of the alodiaries of Kent as of an existing class[634]. 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 can not be very certain that they ever opposed these terms to each other[635]. 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[636]. 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.