Part 20

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.

[Application of the formula of dependent tenure.]

It is probable that this process had gone somewhat further in Normandy than in England. It is probable that the Normans knew that in imposing upon all English lands 'the formula of dependent tenure' they were simplifying matters. They seem to think, and they may be pretty right in thinking, that every English land-holder had held his land under (_sub_) some lord; but apparently they do not think that every English land-holder had held his land of (_de_) some lord. Not unfrequently they show that this is so. Thus one Sigar holds a piece of Cambridgeshire _of_ Geoffrey de Mandeville; he used to hold it _under_ Æsgar the Staller[637]. We catch a slight shade of difference between the two prepositions; _sub_ lays stress on the lord's power, which may well be of a personal or justiciary, rather than of a proprietary kind, while _de_ imports a theory about the origin of the tenure; it makes the tenant's rights look like derivative rights:--it is supposed that he gets his land from his lord. And at least in the eastern counties--so it may well have seemed to the Normans--matters sadly needed simplification. Even elsewhere and when a large estate is at stake they can not always get an answer to the question 'Of whom was this land holden[638]?' Still they thought that some of the greatest men in the realm had held their lands, or some of their lands, of the king or of someone else. The formulas which are used throughout the description of Hampshire and some other counties seem to assume that every holder of a manor, at all events if a layman, had held it _of_ the king, if he did not hold it _of_ another lord. Tenure _in feudo_ again they regarded as no innovation[639]. They saw the work of subinfeudation:--Brihtmær held land of Azor and Azor of Harold; we may well suppose that Harold held it _of_ the king and that some villeins held part of it of Brihtmær, and thus we see already a feudal ladder with no less than five rungs[640]. They saw that the thegns owed 'service' to their lords[641]. They saw the heriot; they sometimes called it a relief[642]. We can not be sure that this change of names imported any change in the law; when a burgess of Hereford died the king took a heriot, but if he could not get the heriot he took the dead man's land[643]. They saw that in certain cases an heir had to 'seek' his ancestor's lord if he wished to enjoy his ancestor's land[644]. They saw that many a free man could not give or sell his land without his lord's consent. They saw that great and powerful men could not give or sell their land without the king's consent[645].

[Military tenure.]

They saw something very like military tenure. No matter with which we have to deal is darker than the constitution of the English army on the eve of its defeat. We may indeed safely believe that no English king had ever relinquished the right to call upon all the free men of his realm to resist an invader. On the other hand, it seems quite clear that, as a matter of fact, 'the host' was no longer 'the nation in arms.' The common folk of a shire could hardly be got to fight outside their shire, and ill-armed troops of peasants were now of little avail. The only army upon which the king could habitually rely was a small force. The city of Oxford sent but twenty men or twenty pounds[646]: Leicester sent twelve men[647]: Warwick sent ten[648]. In Berkshire the law was that, if the king called out the host, one soldier (_miles_) should go for every five hides and should receive from each hide four shillings as his stipend for two months' service. If the man who was summoned made default, he forfeited all his land to the king; but there were cases in which he might send one of his men as a substitute, and for a default committed by his substitute he suffered no forfeiture, but only a fine of fifty shillings[649]. It is probable that a similar 'five hide rule' obtained throughout a large part of England. The borough of Wilton was bound to send twenty shillings or one man 'as for an honour of five hides[650].' When an army or a fleet was called out, Exeter 'served to the amount of five hides[651].' All this points to a small force of well armed soldiers. For example, 'the five hide rule' would be satisfied if Worcestershire sent a contingent of 240 men. But not only was the army small; it was a territorial army; it grew out of the soil.

[The army and the land.]

At first sight this 'five hide rule' may seem to have in it little that is akin to a feudal system of knights' fees. We may suppose that it will work thus:--The host is summoned; the number of hides in each hundred is known. To despatch a company of soldiers proportioned to the number of the hides, for example twenty warriors if the hundred contains just one hundred hides, is the business of the hundred court and the question 'Who must go?' will be answered by election, rotation or lot. But it is not probable that the territorializing process will stop here, and this for several reasons. An army that can not be mobilized without the

## action of the hundred moots is not a handy force. While the hundredors

are deliberating the Danes or Welshmen will be burning and slaying. Also a king will not easily be content with the responsibility of a fluctuating and indeterminate body of hundredors; he will insist, if he can, that there must be some one person answerable to him for each unit of military power. A serviceable system will not have been established until the country is divided into 'five-hide-units,' until every man's holding is such an unit, or is composed of several such units, or is an aliquot share of such an unit. Then again the holdings with which the rule will have to deal are not homogeneous; they are not all of one and the same order. It is not as though to each plot of land there corresponded some one person who was the only person interested in it; the occupiers of the soil have lords and again those lords have lords. The king will insist, if he can, that the lords who stand high in this scale must answer to him for the service that is due from all the lands over which they exercise a dominion, and then he will leave them free to settle, as between themselves and their dependants, the ultimate incidence of the burden:--thus room will be made for the play of free contract. At all events when, as is not unusual, some lord is the lord of a whole hundred and of its court, the king will regard him as personally liable for the production of the whole contingent that is due from that hundred. In this way a system will be evolved which for many practical purposes will be indistinguishable from the system of knights' fees, and all this without any help from the definitely feudal idea that military service is the return which the tenant makes to the lord for the gift of land that the lord has made to the tenant.

[Feudalism and army service.]

That this process had already done much of its work when the old English army received its last summons, we can not doubt, though it is very possible that this work had been done sporadically. We see that the land was being plotted out into five-hide-units. In one passage the Norman clerks call such a unit an honour, an 'honour of five hides[652].' There is an old theory based upon legal texts that such an honour qualifies its lord or owner to be a thegn. If a ceorl prospers so that he has five hides 'to the king's útware,' that is, an estate rated as five hides for military purposes, he is worthy of a thegn's wergild[653]. Then the Anglo-Saxon charters show us how the kings have been endowing their thegns with tracts of territory which are deemed to contain just five or some multiple of five hides[654]. The thegn with five hides will have tenants below him; but none of them need serve in the host if their lord goes, as he ought to go, in person. Then each of these territorial units continues to owe the same quantum of military service, though the number of persons interested in it be increased or diminished, and thus the ultimate incidence of the duty becomes the subject-matter of private arrangements. That is the point of a story from Lincolnshire which we have already recounted:--A man's land descends to his four sons; they divide it equally and agree to take turns in doing the military service that is due from it; but only the eldest of them is to be the king's man[655]. Then we see that the great nobles lead or send to the war all the _milites_ that are due from the lands over which they have a seignory. There are already wide lands which owe military service--we can not put it otherwise--to the bishop of Winchester as lord of Taunton:--they owe 'attendance in the host along with the men of the bishop[656].' The churches of Worcester and Evesham fell out about certain lands at Hamton; one of the disputed questions was whether or no Hamton ought to do its military service 'in the bishop's hundred of Oswaldslaw' or elsewhere[657]. This question we take to be one of great importance to the bishop. Lord of the triple hundred of Oswaldslaw, lord of three hundred hides, he is bound to put sixty warriors into the field and he is anxious that men who ought to be helping him to make up this tale shall not be serving in another contingent.

[Default of service.]

But from Worcestershire we obtain a still more precious piece of information. The custom of that county is this:--When the king summons the host and his summons is disregarded by one who is a lord with jurisdiction, 'by one who is so free a man that he has sake and soke and can go with his land where he pleases,' then all his lands are in the king's mercy. But if the defaulter be the man of another lord and the lord sends a substitute in his stead, then he, the defaulter, must pay forty shillings to his lord,--to his lord, not to the king, for the king has had the service that was due; but if the lord does not send a substitute, then the forty shillings which the defaulter pays to the lord, the lord must pay to the king[658]. A feudalist of the straiter sort might well find fault with this rule. He might object that the lord ought to forfeit his land, not only if he himself fails to attend the host, but also if he fails to bring with him his due tale of _milites_. Feudalism was not perfected in a day. Still here we have the root of the matter--the lord is bound to bring into the field a certain number of _milites_, perhaps one man from every five hides, and if he can not bring those who are bound to follow him, he must bring others or pay a fine. His man, on the other hand, is bound to him and is not bound to the king. That man by shirking his duty will commit no offence against the king. The king is ceasing to care about the ultimate incidence of the military burden, because he relies upon the responsibility of the magnates. How this system worked in the eastern counties where the power of the magnates was feebler, we can not tell. It is not improbable that one of the forces that is attaching the small free proprietors to the manors of their lords is this 'five hide rule'; they are being compelled to bring their acres into five-hide-units, to club together under the superintendence of a lord who will answer for them to the king, while as to the villeins, so seldom have they fought that they are ceasing to be 'fyrd-worthy[659].' But in the west we have already what in substance are knights' fees. The Bishop of Worcester held 300 hides over which he had sake and soke and all customs; he was bound to put 60 _milites_ into the field; if he failed in this duty he had to pay 40 shillings for each deficient _miles_. At the beginning of Henry II.'s reign he was charged with 60 knights' fees[660].

[The new military service.]

We are not doubting that the Conqueror defined the amount of military service that was to be due to him from each of his tenants in chief, nor are we suggesting that he paid respect to the rule about the five hides, but it seems questionable whether he introduced any very new principle. A new theoretic element may come to the front, a contractual element:--the tenant in chief must bring up his knights because that is the service that was stipulated for when he received his land. But we cannot say that even this theory was unfamiliar to the English. The rulers of the churches had been giving or 'loaning' lands to thegns. In so doing they had not been dissipating the wealth of the saints without receiving some 'valuable consideration' for the gift or the loan (_lǽn_); they looked to their thegns for the military service that their land owed to the king. To this point we must return in our next essay; but quite apart from definitely feudal bargains between the king and his magnates, between the magnates and their dependants, a definition of the duty of military service which connects it with the ownership of land (and to such a definition men will come so soon as the well-armed few can defeat the ill-armed many) will naturally produce a state of things which will be patient of, even if it will not engender, a purely feudal explanation. If one of the men to whom the Bishop of Worcester looks for military service makes a default, the fine that is due from him will go to the bishop, not to the king. Why so? One explanation will be that the bishop has over him a sake and soke of the very highest order, which comprehends even that _fyrd-wíte_, that fine for the neglect of military duty, which is one of the usually reserved pleas of the crown[661]. Another explanation will be that this man has broken a contract that he made with the bishop and therefore owes amends to the bishop:--to the bishop, not to the king, who was no party to the contract. Sometimes the one explanation will be the truer, sometimes the other. Sometimes both will be true enough. As a matter of fact, we believe that these men of the Bishop of Worcester or their predecessors in title have solemnly promised to do whatever service the king demands from the bishop[662]. Still we can hardly doubt which of the two explanations is the older, and, if we attribute to the Norman invaders, as perhaps we may, a definite apprehension of the theory that knight's service is the outcome of feudal compacts, this still leaves open the inquiry whether the past history of military service in Frankland had not been very like the past history of military service in England. Already in the days of Charles the Great the duty of fighting the Emperor's battles was being bound up with the tenure of land by the operation of a rule very similar to that of which we have been speaking. The owner of three (at a later time of four) manses was to serve; men who held but a manse apiece were to group themselves together to supply soldiers. Then at a later time the feudal theory of free contract was brought in to explain an already existing state of things[663].

[The thegns.]

Closely connected with this matter is another thorny topic, namely, the status of the thegn and the relation of the thegn to his lord. In the Confessor's day many _maneria_ had been held by thegns; some of them were still holding their lands when the survey was made and were still called thegns. The king's thegns were numerous, but the queen also had thegns, the earls had thegns, the churches had thegns and we find thegns ascribed to men who were neither earls nor prelates but themselves were thegns[664]. Many of the king's thegns were able to give or sell the lands that they held, 'to go to whatever lord they pleased[665].' On the other hand, many of the thegns of the churches held lands which they could not 'withdraw' from the churches[666]; in other words 'the thegn-lands' of the church could not be separated from the church[667]. The Conqueror respected the bond that tied them to the church. The Abbot of Ely complained to him that the foreigners had been abstracting the lands of St. Etheldreda. His answer was that her demesne manors must at once be given back to her, while as for the men who have occupied her thegnlands, they must either make their peace with the abbot or surrender their holdings[668]. Thus the abbot seems to have had the benefit of that forfeiture which his thegns incurred by espousing the cause of Harold. We see therefore that the relation between thegn, lord and land varied from case to case. The land might have proceeded from the lord and be held of the lord by the thegn as a perpetually inheritable estate, or as an estate granted to him for life, or granted to him and two successive heirs[669]; on the other hand, the lord's hold over the land might be slight and the bond between thegn and lord might be a mere commendation which the thegn could at any time dissolve. Again, the relation between thegn and lord is no longer conceived as a menial, 'serviential' or ministerial relation. The _Taini Regis_ are often contrasted with the _Servientes Regis_[670]. The one trait of thegnship which comes out clearly on the face of our record is that the thegn is a man of war[671]. But even this trait is obscured by language which seems to show that there has been a great redistribution of military service. Though there is no Latin word that will translate _thegn_ except _miles_, though these two terms are never contrasted with each other, and though there are thegns still existing, still of these two terms one belongs to the old, the other to the new order of things[672]. Thus thegnship is already becoming antiquated and we are left to guess from older dooms and later Leges what was its essence in the days of King Edward.

[Nature of thegnship.]