Frederic William Maitland

“ We must add that it is a superiority over free men and over men who have titles that can be the subject of law-suits in the county court. And now we must ask, What profit does the nation get out of this superiority? Shall we say that the tributum, the vectigal paid to the king is to be regarded as rent paid to the nation, that the opera regia, the victus, the pastus, are services rendered by the tenant to the people, or shall we say that the folk’s right over this land is proved by its serving as the fund whereon the king can draw when he desires to save his soul? ”

“ 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. ”

“ The freeholder of the thirteenth century is much more like the subject of a modern state than was the free man of the Confessor’s day who could place himself and his land under the power and warranty of whatever lord he chose. Lordship in becoming landlordship begins to lose its most dangerous element; it is ceasing to be a religion, it is becoming a ‘real’ right, a matter for private law. Again, we may guess, if we please, that but for the Norman Conquest the mass of the English peasantry would never have fallen so low as fall it did. ”

“ If we render vicecomes by sheriff we are making our sheriff too little of a vicomte. When comes is before us we have to choose between giving Britanny an earl, giving Chester a count, or offending some of our comites by invidious distinctions. Time will show what these words shall mean. Some will perish in the struggle for existence; others have long and adventurous careers before them. ”

“ In legal logic the lord’s liability for the geld that is apportioned on the land occupied by his villeins may be rather an effect than a cause. A lawyer might argue that the lord must pay because the occupier is his villanus, not that the occupier is a villanus because the lord pays. And yet, as we may often see in legal history, there will be action and reaction between cause and effect. The geld is no trifle. Levied at that rate of six shillings on the hide at which King William has just now levied it, it is a momentous force capable of depressing and displacing whole classes of men. ”

“ If we could define the liber homo, sochemannus, villanus, cotarius, servus, we should have solved some of the great legal problems of Domesday Book, for by the way we should have had to define two other difficult terms, namely manerium and soca. It would then remain that we should say something of the higher strata of society, of earls and sheriffs, of barons, knights, thegns and their tenures, of such terms as alodium and feudum, of the general theory of landownership or landholdership. We will begin with the lowest order of men, with the servi, and thence work our way upwards. ”

“ 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. ”

“ If a slave is to be freed this should be done publicly, in court, or church or market, and lance and helmet or other the arms of free men should be given him, while he should give his lord thirty pence, that is the price of his skin, as a sign that he is henceforth ‘worthy of his hide.’ On the other hand, when a free man falls into slavery then also there should be a public ceremony. ”

“ Had it not been for this, we should surely have had some franc alleu to oppose to the fief, some Eigen to oppose to the Lehn. But if England was not to be for ever a prey to rebellions and civil wars, the power of the lords over their men must have been—not indeed increased, but—territorialized; the liberty of ‘going with one’s land to whatever lord one chose’ must have been curtailed. As yet the central force embodied in the kingship was too feeble to deal directly with every one of its subjects, to govern them and protect them. ”

“ A raid of the Danes, a feud between Angle and Saxon, was a different affair. The peasants fought. Men, women and children were sold as slaves. Also there was deliberate devastation. ‘They make a wilderness and call it peace.’ What else should they call it, when a foodless wilderness is the most scientific of all frontiers? Readers of the English Chronicle will doubt whether there is any village in England that has not been once, or more than once, a deserted village. And if we must reckon with war, there is famine also to be reckoned with. ”

“ In those boroughs that are fully described we seldom, if ever, find that all the burgesses have the same landlord. Of course there is a sense in which, according to the view of the Domesday surveyors and of all later lawyers, every inch of borough land is held of one landlord, namely, the king; but in that sense every inch of England has the same landlord. The fact that we would bring into relief is this, that normally the burgesses of the borough do not hold their burgages immediately of one and the same lord; they are not ‘peers of a tenure’ ”

“ No one who has paid any attention to the history of law is likely to maintain with a grave face that the ownership of land was attributed to fictitious persons before it was attributed to men. But if we abandon ownership by corporations and place in its stead co-ownership, then we seem to be making an unfortunate use of words if we say that land belonged to communities before it belonged to individuals. ”

“ Then it is the very land itself that he gives, the land of so many manses, ‘with all the appurtenances, fields, pastures, woods, marshes.’ It is no mere right over the land that he gives, but the very soil itself. ”

“ And of course it is fair to say that in our days a grant of private justice would be an extremely different thing from a grant of freedom from fiscal dues. But what, we must ask, does this freedom from fiscal dues really mean when it is granted by an Anglo-Saxon land-book? When the monks or canons obtain a charter freeing this territory from all tributum and census, from all pastiones and so forth, is it intended that the occupiers of the soil shall have the benefit of this grant? Not so. The religious have been stipulating for themselves and not for their men. ”

“ All land is freehold land; every rood has its freeholder. Bracton habitually spoke of land held by frankalmoin, land held by knight’s service, land held in socage, but he knew well enough that a single acre might be held at one and the same time by many different tenures. Just so, we take it, the same land might be both book-land and folk-land, the book-land of the minster, the folk-land of the free men who were holding—not indeed ‘of’—but still ‘under’ the minster. ”

“ A measure is an idea; a hide is a tenement. The ‘foot’ does not begin by being twelve inches; it begins by being a part of the human body. The ‘acre’ does not begin by being 4840 square yards; it begins by being a strip in the fields that is ploughed in a forenoon. But unless there were much equality between human feet, the foot would not become a measure; nor would the acre become a measure unless the method of ploughing land were fairly uniform. A great deal of similarity between the ‘real’ hides or ‘householder’s lands’ we must needs suppose if the hide becomes a measure ”

“ The sokemen of Orwell have worshipped every rising sun. One has commended himself to the ill-fated Harold, another to the ill-fated Waltheof, a third has chosen the Mercian Ælfgar, a fourth has placed himself under the aspiring Archbishop; yet all are free to ‘withdraw.’ We have here a very free village indeed, for its members enjoy a freedom of which no freeholder of the thirteenth century would even dream, and in a certain sense we have here a free village community. How much communalism is there? ”

“ Is it not marvellous that there should be land owned by the people and yet that we should have to discover this momentous fact from a few casual phrases occurring in three documents of the ninth and tenth centuries? Are we to suppose that whenever the king is giving away land, this land is the land of the people? Why do not the charters say so? Repeatedly the king speaks of the land that he gives as ‘my land’ (terram iuris mei) , and this too in charters which state that the witan give their consent to the grant. ”

“ No one supposes that a Roman landowner whose hands were free allowed the soil of his villa to be parcelled out in accordance with this wasteful, cumbrous, barbarous plan. So his hands must not be free; the soil of which he becomes the owner must already be plotted out in strips, and these strips must be so tightly bound up into manses, that he scruples to overturn an existing arrangement, and contents himself with appropriating a few of the manses for his own use and compelling the occupants of the others to labour for him and pay him rents. ”

“ We may once and for all dismiss as a dream any theory which would teach us that from the first the main and normal constitutive cell in the social structure of the English people has been the manor. To call the ceorl’s tenement of 120 acres a manor, though it may have a few slaves to till it, would be a grotesque misuse of words, nor, if there is to be clear thinking, shall we call it an embryo manor, for by no gradual process can a manor be developed from it. There must be a coagulation of some three or four such tenements into a single proprietary unit before that name can be fairly earned. ”

“ We are not saying that there is already military tenure, but we do say that already the ‘fyrd’ is conceived as a burden on land, in so much that the phrase ‘This land is—or is not—to be free of military service’ has a meaning. But after all, land never fights: men fight. Of what men then is the king speaking when he says that the land is, or is not, free from the expeditio? Not of the donees themselves, for they are bishops and monks and serve in no army but God’s. Not of the slaves who are on the land, for they are not ‘fyrd-worthy.’ He is speaking of free men who live on the land ”

“ It is not the intention of the king who makes or of the church which receives the grant that crimes committed on this land shall go unpunished. No lord would wish his territory to be a place where men might murder and steal with impunity. We may be certain then that if a crime be committed, there is to be a wite; but it is not to go outside the land; the lord himself is to have it. But how is the lord to enforce his right to the wite,—must he sue for it in the national or communal courts, or has he a court of his own. ”

“ But, if we would not be guilty of this confusion, then we must be very careful before we assent to the proposition that in the normal course of history (if indeed in such a context history can be said to have a normal course) the ownership of land by communities appears before the ownership of land by individuals. Even if we put aside all such criticisms as would be legal quibbles in the eyes of impatient theorists, and refuse to say whether the ‘community’ is a mass of men, an ideal person or tertium quid, we still are likely to find that the anthropologists will be against us. ”

“ If a slave is charged with a crime his master is bound to produce him in court. But the law requires that the lord shall in very similar fashion produce his free ‘loaf eater,’ his mainpast, nay, it has been endeavouring to enforce the rule that every free man who has no land of his own shall have a lord bound to produce him when he is accused. Also it has been fostering the growth of private justice. The lord’s duty of producing his men, bond and free, has been becoming the duty of holding a court in which his men, free and bond, will answer for themselves. ”

“ Theories like those of which we are speaking are born of facts and in their turn generate new facts. Our forefathers really lived in a simpler and a more chess-board-like England than that which we know. There must have been much equality among the hides and among the villages. When we see that a ‘hundred’ in Cambridgeshire has exactly 100 hides which are distributed between six vills of 10 hides apiece and eight vills of 5 hides apiece, this simple symmetry is in part the unreal outcome of a capricious method of taxation, but in part it is a real economic fact. ”

“ The lord who does his duty by the king and the nation is he who keeps a tight hold on his men, who chooses them carefully, who dismisses them if they are bad subjects, who ‘does justice’ and ‘holds full right’ if any of them be accused. Then, on the other hand, he has the right and duty of ‘warranting’ his men. If, as will often happen, the bond between a lord and his man is complicated with the bond between landlord and tenant, then, as in later days, if the tenant’s title be impeached, he will vouch his lord to warranty and the lord will defend the action. ”

“ 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] . ”

“ The law of Edward the Elder seems to set before us book-land and folk-land as exhausting the kinds of land. ‘He who deforces any one of his right, be it in book-land, be it in ‘folk-land’ must pay a penalty.’ It is difficult to believe that this law says nothing of one very common kind of land, still more difficult to believe that already in the first half of the ninth century the amount of the so-called alod, ethel, or ‘heir-land,’ had become so small that it might be neglected. So far as we can see, book-land from first to last was only held by the churches and by very great men. ”

“ We first hear of the town houses that are held by great men as parts of their manors, and then we hear that ‘besides these houses there are in the borough nineteen burgesses who have nineteen houses with sake and soke and all customs.’ Now we can not easily believe that the burgess’s house is a jurisdictional area, or that in exacting a mulct from one who commits a crime in that house the burgess will be playing the magistrate or exercising a right to do justice or take the profits of justice by virtue of a grant made to him by the king. ”