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

by Frederic William Maitland

Let us for a moment remember that the wording of a modern English conveyance might easily delude a layman or a foreigner. An impecunious earl, we will say, sells his ancient family estate. We look at the deed whereby this sale is perfected. The Earl of A. grants unto B. C. and his heirs all the land delineated on a certain map and described in a certain schedule. That in substance is all that the deed tells us. We look at the map; we see a tract of many thousand acres, which, besides a grand mansion, has farm-houses, cottages, perhaps, entire villages upon it. The schedule tells us the names of the fields and of the farm-houses. Like enough no word will hint that any one lives in the houses and cottages, or that any one, save the seller, has any right of any kind in any part of this wide territory. But what is the truth? Perhaps a hundred different men, farmers and cottagers, have rights of different kinds in various portions of the tract. Some have leases, some have ‘agreements for leases,’ some hold for terms of years, some hold from year to year, some hold at will. The rights of these tenants stand, as it were, between the purchaser and the land that he has bought. He has bought the benefit, and the burden also, of a large mass of contracts. But of these things his conveyance says nothing[878]. And so again, in the brief charters of the thirteenth century a feoffor will say no more than that he has given manerium meum de Westona, as though the manor of Weston were some simple physical object like a black horse, and yet under analysis this manerium turns out to be a complex tangle of rights in which many men, free and villein, are concerned.

Conveyance of superiority in early times.

But it will be said that all this is the result of ‘feudalism.’ It implies just that dismemberment of the dominium which is one of feudalism’s main characteristics. Undoubtedly in the twelfth century the free tenant in fee simple who holds land ‘in demesne’ can have, must have, a lord above him, who also holds and is seised of that land and who will speak of the land as his. But we are now in the age before feudalism, in the seventh and eighth centuries. Are we to believe that the free owner of Kemble’s ‘ethel, hid, or alod’ might have above him, perhaps always had above him, not merely a lord (for a personal relation of patronage between lord and man is not to the point), but a landlord: one who would speak of that ‘ethel, hid or alod’ as terra iuris mei: one who to save his soul would give lsquo;that land to a church and tell the bishop or abbot to do whatever he pleased with it? If we believe this, shall we not be believing that so far as English history can be carried there is no age before ‘feudalism’.

Illustrations.

We will glance for a moment at two transactions which took place near the end of the seventh century. Bede tells how Æthelwealh king of the South Saxons was persuaded to become a Christian by Wulfhere king of the Mercians. The Mercian received the South Saxon as his godson and by way of christening-gift gave him two provinces, namely the Isle of Wight and the territory of the Meanwari in Wessex, perhaps the hundreds of Meon in Hampshire[879]. Then the same Bede tells us that the same Æthelwealh gave to Bishop Wilfrid a land of eighty-seven families, to wit, the promontory of Selsey: he gave it with its fields and its men, among whom were two hundred and fifty male and female slaves[880]. A modern reader will perhaps see here two very different transactions. In the one case he sees ‘the cession of a province’ by one king to another, and possibly he thinks how Queen Victoria ceded Heligoland to her imperial grandson:—the act is an act of public law, a transfer of sovereignty. In the other case he sees a private act, the gift of an estate for pious uses. But Bede and his translator saw little, if any, difference between the two gifts: in each case Bede says ‘donavit’; the translator in the one case says ‘forgeaf,’ in the other ‘geaf and sealde.’ Now it will hardly be supposed that the Isle of Wight had no inhabitants who were not the slaves or the coloni of the king, and, that being so, we are not bound to suppose that there were no free landowners in the promontory of Selsey. May it not be that what Æthelwealh had to give and gave to Wilfrid was what in our eyes would be far rather political power than private property.

What had the king to give?

But over the free land of free landowners what rights had the king which he could cede to another king or to a prelate, saying withal that the subject of his gift was land? He had, as we think, rights of two kinds that were thus alienable; we may call them fiscal rights and justiciary rights, though such terms must be somewhat too precise when applied to the vague thought of the seventh and eighth centuries. Of justiciary rights we shall speak below. As to the rights that we call fiscal, we find that the king is entitled to something that he calls tributum, vectigal, to something that he calls pastus, victus, the king’s feorm; also there is military service to be done, and the king, when making a gift, may have a word to say about this.

The king’s alienable rights.

Now it must at once be confessed that the charters of this early period seldom suggest any such confusion between political power and ownership as that which we postulate. Still from time to time hints are given to us that should not be ignored. Thus a Kentish king shortly after the middle of the eighth century gave to the church of Rochester twenty ploughlands, not only ‘with the fields, woods, meadows, pastures, marshes and waters thereto pertaining,’ but also ‘with the tributum which was paid thence to the king[881].’ Such a phrase would hardly be appropriate if the king were giving land of which he was the absolute owner, land cultivated for him by his slaves.

Military service as a burden on land.