Domesday Book and Beyond: Three Essays in the Early History of England

by Frederic William Maitland

It can not but be, however, that this part of our work should be controversial, though it need not be polemical. We are told that ‘in spite of all the labour that has been spent on the early history of England, scholars are still at variance upon the most fundamental of questions: the question whether that history began with a population of independent freemen or with a population of dependent serfs[854]’. Some exception may be taken to this statement. No one denies that for the purposes of English history slavery is a primitive institution, nor that in the seventh and eighth centuries there were many slaves in England. On the other hand, no one will assert that we can ascertain, even approximately, the ratio that the number of slaves bore to the number of free men. Moreover such terms as ‘dependent’ and ‘independent’ are not words that we can profitably quarrel over, since they are inexact and ambiguous. For all this, however, it may well be said that there are two main theories before the world. The one would trace the English manor back to the Roman villa, would think of the soil of England as being tilled from the first mainly by men who, when they were not mere slaves, were coloni ascript to the land. The other would postulate the existence of a large number of free men who with their own labour tilled their own soil, of men who might fairly be called free ‘peasant proprietors’ since they were far from rich and had few slaves or servants, and yet who were no mere peasants since they habitually bore arms in the national host. What may be considered for the moment as a variant on this latter doctrine would place the ownership of the soil, or of large tracts of the soil, not in these free peasants taken as individuals, but in free village communities.

The Romanesque theory unacceptable.

Now we will say at once that the first of these theories we can not accept if it be put forward in a general form, if it be applied to the whole or anything like the whole of England. Certainly we are not in a position to deny that in some cases, a Roman villa having come into the hands of a Saxon chieftain, he treated the slaves and coloni that he found upon it in much the same way as that in which they had been theretofore treated, though even in such a case the change was in all probability momentous, since large commerce and all that large commerce implies had perished. But against the hypothesis that this was the general case the English language and the names of our English villages are the unanswered protest. It seems incredible that the bulk of the population should have been of Celtic blood and yet that the Celtic language should not merely have disappeared, but have stamped few traces of itself upon the speech of the conquerors.[855] This we regard as an objection which goes to the root of the whole matter and which throws upon those who would make the English nation in the main a nation of Celtic bondmen, the burden of strictly proving their thesis. The German invaders must have been numerous. The Britons were no cowards. They contested the soil inch by inch. The struggle was long and arduous. What then, we must ask, became of the mass of the victors? Surely it is impossible that they at once settled down as the ‘dependent serfs’ of their chieftains. Again, though it is very likely that where we find a land of scattered steads and of isolated hamlets, there the Germanic conquerors have spared or have been unable to subdue the Britons or have adapted their own arrangements to the exterior framework that was provided by Celtic or Roman agriculture, still, until Meitzen[856] has been refuted, we are compelled to say that our true villages, the nucleated villages with large ‘open fields,’ are not Celtic, are not Roman, but are very purely and typically German. But this is not all. Hereafter we shall urge some other objections. The doctrine in question will give no rational explanation of the state of things that is revealed to us by the Domesday Survey of the northern and eastern counties and it will give no rational explanation of seignorial justice. This being so, we seem bound to suppose that at one time there was a large class of peasant proprietors, that is, of free men who tilled the soil that they owned, and to discuss the process which substitutes for peasant proprietorship the manorial organization.

Feudalism as a normal stage.

Though we can not deal at any length with a matter which lies outside the realm of legal history, we ought at once to explain that we need not regard this change as a retrogression. There are indeed historians who have not yet abandoned the habit of speaking of feudalism as though it were a disease of the body politic. Now the word ‘feudalism’ is and always will be an inexact term, and, no doubt, at various times and places there emerge phenomena which may with great propriety be called feudal and which come of evil and make for evil. But if we use the term, and often we do, in a very wide sense, if we describe several centuries as feudal, then feudalism will appear to us as a natural and even a necessary stage in our history: that is to say, if we would have the England of the sixteenth century arise out of the England of the eighth without passing through a period of feudalism, we must suppose many immense and fundamental changes in the nature of man and his surroundings. If we use the term in this wide sense, then (the barbarian conquests being given us as an unalterable fact) feudalism means civilization, the separation of employments, the division of labor, the possibility of national defence, the possibility of art, science, literature and learned leisure; the cathedral, the scriptorium, the library, are as truly the work of feudalism as is the baronial castle. When therefore we speak, as we shall have to speak, of forces which make for the subjection of the peasantry to seignorial justice and which substitute the manor with its villeins for the free village, we shall—so at least it seems to us—be speaking not of abnormal forces, not of retrogression, not of disease, but in the main of normal and healthy growth. Far from us indeed is the cheerful optimism which refuses to see that the process of civilization is often a cruel process; but the England of the eleventh century is nearer to the England of the nineteenth than is the England of the seventh—nearer by just four hundred years.

Feudalism as progress and as retrogress.

This leads to a remark which concerns us more deeply. As regards the legal ideas in which feudalism is expressed a general question may be raised. If we approach them from the standpoint of modern law, if we approach them from the standpoint of the classical Roman law, they are confused ideas. In particular no clear line is drawn between public and private law. Ownership is dominium; but governmental power, jurisdictional power, these also are dominium. Office is property; taxes are rents; governmental relationships arise ex contractu. Then within the province of private law the ideas are few; these few have hard work to do; their outlines are blurred. One dominium rises above another dominium, one seisin over another seisin. Efforts after precision made in comparatively recent times by romanizing lawyers serve only to show how vague was the subject-matter with which they had to deal. They would give the lord a dominium directum, the vassal a dominium utile; but then, when there has been further subinfeudation, this vassal will have a dominium utile as regards the lord paramount, but a dominium directum as regards the sub-vassal. So again, as we shall see hereafter, the gift of land shades off into the ‘loan’ of land, the ‘loan’ into the gift. The question then occurs whether we are right in applying to this state of things such a word as ‘confusion,’ a word which implies that things that once were distinct have wrongfully or unfortunately been mixed up with each other, a word which implies error or retrogression.

Progress and retrogress in the history of legal ideas.

Now, no doubt, from one point of view, namely that of universal history, we do see confusion and retrogression. Ideal possessions which have been won for mankind by the thought of Roman lawyers are lost for a long while and must be recovered painfully. Lines that have been traced with precision are smudged out, and then they must be traced once more. If we regard western Europe as a whole, this retrogression appears as a slow change. How slow—that is a much controverted question. There are, for example, historians who would have us think of the Gaul of Merovingian times as being in the main governed by Roman ideas and institutions, which have indeed been sadly debased, but still are the old ideas and institutions. There are other historians who can discover in this same Gaul little that is not genuinely German and barbarous. But at any rate, it must be admitted that somehow or another a retrogression takes place, that the best legal ideas of the ninth and tenth centuries are not so good, so modern, as those of the third and fourth. If, however, we take a narrower view and fix our eyes upon the barbarian hordes which invade a Roman province, shall we say that their legal thought gradually goes to the bad, and loses distinctions which it has once apprehended? To turn to our own case—Shall we say that Englishmen of the eighth century mark the line that divides public from private law, while Englishmen of the eleventh century can not perceive it.

The contact of barbarism and civilization.