In the formal returns (cartae) made to the exchequer in 1166 by the tenants-in-chief (barones) of England, of which the official transcripts are preserved in the Liber Niger and the Liber Rubeus, we have our earliest glimpse of the organization of that purely feudal host among whom our lands had been parcelled out to be held, as I shall show, by military service. We have, therefore, in them our best starting-point for an inquiry into the origin and growth of military tenure in England.

It may be well perhaps, at the very outset, to contrast these cartae of 1166 with those of the Domesday Inquest eighty years before.⁴⁰ For the essentially feudal character of the former is at once, by the comparison, thrown into relief. The original returns of the Domesday Inquest were made Hundred by Hundred; those of 1166 were made fief by fief. The former were made by the jurors of the Hundred-court; the latter by the lord of the fief. Thus, while the one took for its unit the oldest and most familiar of native organizations, the other, ignoring not only the Hundred, but even the shire itself, took for its unit the alien organization of the fief.⁴¹ The one inquest strictly continued, the other wholly repudiated, the Anglo-Saxon system.

It is consequently worse than lost labour to examine these two inquests, based as they are on opposite systems, and giving us as they do a cross-division as if they were but successive editions of the national register or rate-book.

The first point to be considered is this: What was the information which the tenants-in-chief were called upon to supply in these returns? It was not, as Dr Stubbs and others have supposed, the amount of 'service' due from each fief to the crown.⁴² The information asked for was the number of 'milites' actually enfeoffed by each 'baron' and his predecessors in title, with the number of 'servitia' due from each such 'miles' to the 'baron'. In this distinction, missed by Dr Stubbs, we find the key to the problem. The crown, we shall see, must previously have known the total amount of 'service' due from each fief; but what it did not know, and what it wished to know, was the number of knights' fees which, up to 1166, had been created on each fief.

Although there is great diversity in the form of return adopted—a diversity which imparts to the cartae a pleasant flavour of character—it may fairly be assumed that, as in similar cases, they were called for throughout the realm by one uniform writ. If we may deduce the purport of that writ from the collation of those returns which refer to it most explicitly, we must infer that the information asked for was to be given under four heads:

(1) How many knights had been enfeoffed before the death of Henry I?

(2) How many have been enfeoffed since?

(3) How many (if any) remain to be enfeoffed to complete the 'service' due from the fief. Or, in other words, what is the balance of your 'service' remaining chargeable to your 'demesne'?

(4) What are the names of your knights?

In support of these statements I append the whole of the relevant returns.

Let me here break off for a moment to consider one of the most important points suggested by this great inquest, namely, the issue of the writs under which it was held. It has been generally assumed that each tenant received his writ direct from the crown; and a casual reading of the cartae might, perhaps, favour such a view. I have, however, been led to the conclusion that a general writ was issued to the sheriff of each county, and that its terms were communicated by him to the several tenants-in-chief, whose capita baroniæ lay within his jurisdiction.

Baderun of Monmouth has heard the writ read out in the county court;⁴⁵ Earl Patrick also has heard the writ read out.⁴⁶ William fitz Siward derives from the sheriff, he tells us, his knowledge of the writ:⁴⁷ even the bishop of Chester has received his instructions from the sheriff.⁴⁸ But more especially do I rely upon the return of the Archbishop of York because he recites the tenor of the writ in terms which can leave no doubt that it was addressed, through the sheriff, to the whole shire collectively.⁴⁹ If the Archbishop of York did not receive a special writ, we may fairly infer that no other tenant can have done so.

Further, I believe that as the 'barons' received their instructions from the sheriffs, so they also sent in their returns through those officers. The memorandum, for instance, on the missing carta of Osbert fitz Hugh informs us that it was brought to the exchequer by William de Beauchamp. Now, William de Beauchamp was sheriff of the shire. This would account for the grouping of the returns 'per singulos comitatus', as Swereford expresses it, and indeed this arrangement would but follow the existing practice of collecting the scutage shire by shire.

Returning now to the terms of the inquiry, it is obvious that the tenant (baro) to whom such queries were addressed must of necessity have belonged to one of these three classes—

(a) Those who had created the exact number of knights' fees sufficient to discharge their 'service'.

(b) Those who had created more than sufficient.

(c) Those who had created less than sufficient.

This last class requires some explanation. When the number of knights' fees created was not sufficient to discharge the baron's 'service', the balance of that service remained charged on the non-infeudated portion of his fief, that is, on the 'demesne', and was technically said to be 'super dominium'. It is all-important that this should be grasped, for it might otherwise be supposed that such a phrase as 'quot milites super dominium' implied the existence of actual knights enfeoffed on the demesne, which, to those who realize the working of the system of knight-service, is an absolute contradiction in terms. This, it will be found, beautifully explains the first article of the Assize of Arms (1181)—that every tenant is to keep in stock harness for as many knights 'quot habuerit feoda militum in dominio suo'.⁵⁰ That is to say, that if, after deducting the knights actually enfeoffed, there remained due from his fief a balance of knight-service, he must keep in readiness harness sufficient for those knights whom he would have to provide himself to discharge that balance.⁵¹

Having made this point clear, I now pass to the immediate object of the inquest of 1166. What that object was, no one has as yet discovered. Dr Stubbs, for instance, in his preface to the Pipe-Roll of 1166, writes: 'On the immediate purpose for which the inquiry was made—and it can scarcely be doubted that it was for the collection of a scutage—we shall look for further information in the rolls of the succeeding years.' My own researches enable me to assert that this inquest formed part of a financial revolution hitherto ignored, which deserves to be compared with those other innovations in administration and finance that characterized the latter half of the twelfth century in England.

When we come to place side by side the returns of 1166 and the payments made upon those returns in 1168, we find (at least, on the lay fiefs) the same distinction in both between 'the old feoffment' and 'the new'. But while the returns, as we saw, were made under three heads,⁵² the payments were made under two, namely, under the two feoffments. The reason of this difference can be established beyond dispute: the exchequer clerks had, in every instance, added the returns under the third head to those under the first, and classed them together as 'old feoffment'. This is one of the points which, I think, have never been hitherto explained.

Plenty of examples might be given, but these two will suffice. Walter de Aincurt returns 24 fees de veteri, 5 de novo, and 11 super dominium. The exchequer, in 1168, records him as paying on 35 fees de veteri, and on 5 de novo.⁵³ Richard de Haie returns 11 fees de veteri, 4 de novo, and 5 super dominium. The exchequer records him as paying on 16 de veteri, and 4 de novo.

The main point, however, on which I propose to insist, is that these returns were intended to provide, and, as a matter of fact, did provide a new feudal assessment, wholly superseding the old one, in no case to the advantage of the tenant, but in many to the advantage of the crown. The modus operandi was as follows. Instead of either adhering to the old assessment (servitium debitum), or uniformly substituting a new one based on the fees actually created, the crown selected in every case whichever of these two systems told in its own favour and against the tenant of the fief. If he had enfeoffed fewer knights than his servitium debitum required, the crown retained that servitium as the irreducible minimum of his assessment; but if he had created an excess of fees, the crown added that excess to his pre-existing assessment and increased the 'service' due from him pro tanto. This discovery is no conjecture, but is capable of arithmetical demonstration.

It should be noticed how skilfully the queries were framed in the inquest of 1166, to entrap the unwary tenant, and make him commit himself to the facts. If his enfeoffed knights were short of the required number, he was caught under the third query; if, on the other hand, he had an excess, he was caught under the others. Now, did the 'barons', when they made their returns, anticipate this sweeping and unwelcome reform? Presumably not. They appear to have drawn up their cartae carefully and willingly, few of those who had an excess of knights taking even the precaution of mentioning their servitium debitum.⁵⁴ The church, moreover, from the terms in which her payments are thenceforth entered (vide infra), must have uniformly and systematically adopted an attitude of protest. Yet there is no trace of such protest in her returns. May we then infer that the crown sought to deliberately entrap its tenants? Two circumstances might favour that view. In the first place the tenants had to make their returns extra sigillum pendentes, thereby solemnly committing themselves;⁵⁵ in the second, the tenants would, of course, have been tempted to conceal or understate their excess of knights, had they foreseen the use that the crown would make of their returns.

The question may very fairly be asked, 'What check had the crown upon a tenant in the event of the latter omitting some of his "excess" fees?' The answer is supplied, I think, by a clause in the invaluable return of the northern primate. He there requests that his return may be accepted 'without prejudice', as a lawyer would say, in case of his omitting some small fees. That is to say, these formal returns might be brought up as evidence against tenants-in-chief who had omitted some of their fees, proving that they had thereby themselves disowned their right to the fees in question.⁵⁶

Two points strike one strongly in the preparation of these returns. The first of these is the difficulty experienced in compiling a correct list of under-tenants and their holdings; the second is the employment of the 'Inquest' as a means of ascertaining the particulars.

Taking the former of these, we find Hugh Wac writing, 'si amplius inquirere possim, notificabo vobis'; and Guarine 'de Aula', 'si plus possim inquirere, faciam vobis scire'; so too the Bishop of Ely, 'de hiis vero certi sumus, et si amplius inquirere poterimus libenter vobis significabimus'; and the Bishop of Bath, 'si certiorem inquirere poterimus veritatem, nos illam vobis significabimus'; and Alfred of Lincoln, 'si plus inquiri potest, inquirere faciemus'. The Bishop of Exeter makes his return, 'sicut eam diligentius inquirere potui'; the Abbot of Tavistock, 'quantum inde sollicitius inquirendo scire potuit'. Hugh de Lacy, in a postscript to his return, adds a fee 'quod oblitus sum'; while the Earl of Clare has to send in a subsequent rider, containing an entry, 'quod ego postquam misi cartam ... recordatus sum'.

From this difficulty it is a short step to the inquests which it seems in some cases to have necessitated. The Abbot of Ramsey heads his return, 'Haec est inquisitio'; the Earl of Warwick similarly commences, 'Hoc est quod inquisivi per homines'. Earl Patrick makes his return, 'secundum quod de probis et antiquis hominibus meis inquirere potui'. 'Fecimus inquirere,' writes the Bishop of Bath, 'per legales homines meos.... Haec autem per eos inquisivimus.'

This brings us directly to the very important inquest referred to in the carta of the Earl of Arundel:

Dominus noster Rex Henricus quadam contentione quae surrexit inter milites de honore de Arundel de exercitu quodam de Walliis, elegit iiij. milites de honore, de melioribus et legalioribus, et antiquioribus ... et fecit eos recognoscere servitia militum de honore, et super legalitatem et sacramenta eorum inde neminem audire voluit.

Mr Eyton argued elaborately on genealogical grounds that this inquest must have taken place under Henry I, but indeed it is quite obvious from the language of the carta itself that this was so. It is, consequently, worthy of notice for its bearing on 'the sworn inquest'. While on this subject, attention may be called to the unique entry in the Pipe-Roll of 12 Henry II (1166): 'Alanus de Munbi debet xl. s. quia non interfuit Jurat' feodorum militum' (p. 8). Investigation proves (through what is known as the Lindsey Survey) that Alan was an under-tenant of the honour of Brittany, the successor of that Eudo who held in Mumby temp. Domesday. This fact throws light on the entry, by suggesting that the inquest referred to concerned the honour of Brittany, the number of fees in which was then and subsequently doubtful.

But to return. It is infinitely easier to trace the change brought about by the inquest of 1166 in the case of the church fiefs than of the lay ones. For on the former it was uniform and glaring. Previously to 1166 the church tenants had paid on their servitium debitum alone; after 1166 they paid, as a rule, on all the fees actually created upon the fief. Thus the assessment of the Bishop of Durham was raised at a blow from ten fees to more than seventy.⁵⁷ There were several equally striking cases among the prelates. Now, whether or not the church tenants feared something of the kind, they had generally been careful in their returns to set forth their servitium debitum, and when, in 1168, they were uniformly assessed on their total of fees, their uniform protest is expressed in the formula 'quos non recognoscit' applied to the payment on their excess knights. Such is the meaning of this puzzling formula which is peculiar to the church fiefs.⁵⁸ In these cases it wholly replaces the de veteri and de novo assessment which, from 1166, was applied to the lay fiefs.

II. THE SERVITIUM DEBITUM

This has, I venture to think, been obscured and lost sight of in the generalizations and vague writing about the 'gradual process' of development. It is difficult for me to traverse the arguments of Gneist, Stubbs and Freeman, because we consider the subject from such wholly different standpoints. For them the introduction of knight service means the process of sub-infeudation on the several fiefs; for me it means the grant of fiefs to be held from the crown by knight service. Thus the process which absorbs the attention of the school whose views I am opposing is for me a matter of mere secondary importance. The whole question turns upon the point whether or not the tenants-in-chief received their fiefs to hold of the crown by a quota of military service, or not. If they did, it would depend simply on their individual inclinations, whether, or how far, they had recourse to sub-infeudation. It was not a matter of principle at all; it was, as Dr Stubbs himself put it, 'a matter of convenience',⁵⁹ a mere detail. What we have to consider is not the relation between the tenant-in-chief and his under-tenants, but that between the king and his tenants-in-chief: for this was the primary relation that determined all below it.

The assumption that the Conqueror cannot have introduced any new principle in the tenure of land lies at the root of the matter. Assuming this, one must of course seek elsewhere for the introduction of knight service. Have not the difficulties of the accepted view arisen from its exponents approaching the problem from the wrong point of view? The tendency to exalt the English and depreciate the Norman element in our constitutional development has led them I think, and especially Mr Freeman, to seek in Anglo-Saxon institutions an explanation of feudal phenomena. This tendency is manifest in their conclusions on the great council:⁶⁰ it colours no less strongly their views on knight service. In neither case can they bring themselves to adopt the feudal standpoint or to enter into the feudal spirit. It is to this that I attribute their disposition to bring the crown face to face with the under-tenant—or 'landowner' as they would prefer to term him—and so to ignore, or at least to minimize the importance of the tenant-in-chief, the 'middleman' of the feudal system. Making every allowance for the policy of the Conqueror in insisting on the direct allegiance of the under-tenant to the crown, and thereby checking the disintegrating influence of a perfect feudal system, the fact remains what we may term the 'military service' bargain was a bargain between the crown and the tenant-in-chief, not between the crown and his under-tenants. It follows from this that so long as the 'baron' (or 'tenant-in-chief') discharged his servitium debitum to the crown, the king had no right to look beyond the 'baron', who was himself and alone responsible for the discharge of this service. It is, indeed, in this responsibility that lies the key to the situation. If the under-tenant of a knight's fee failed to discharge his service, it was not to him, but to his lord, that the crown betook itself. 'I know nothing of your tenant,' was in effect the king's position; 'you owe me, for the tenure of your fief, the service of so many knights, and that service must be performed, whether your under-tenants repudiate their obligations to yourself or not'. In other words the 'baron' discharged his service to the king, whereas the baron's under-tenants discharged theirs to their lord.⁶¹ So the Dialogus speaks of the under-tenant's 'numerum militum quos domino debuerat'.

Let us then apply ourselves directly to the quotas of military service due from the 'barons' to the crown, and see if, when ascertained, they throw any fresh light on the real problem.

No attempt, so far as I know, has ever been made to determine these quotas, and indeed it was the utter want of trustworthy information on the subject that led Swereford to undertake his researches in the thirteenth century. Those researches, unfortunately, leave us no wiser, partly from his defective method and want of the requisite accuracy; partly from the fact that what he sought was not abstract historical truth, but practical information bearing on the existing rights of the crown. We must turn therefore to the original authorities: (1) the cartae baronum, (2) the annual rolls. These were the two main sources of Swereford's information, as they must also be of ours. In the next part of this paper I shall deal with the evidence of the rolls, as checking and supplementing the cartae baronum.

I shall analyse the church fiefs first, because we can ascertain, virtually with exactitude, the servitium debitum of every prelate and of every head of a religious house who held by knight service. The importance of these figures, together with the fact that they have never, so far as I know, been set forth till now, has induced me to append them here in full detail.

Every English See then in existence is thus accounted for with the solitary and significant exceptions of Carlisle and Rochester. The latter See, we know, had enfeoffed knights for their names (temp. Henry I, I think, from internal evidence) are recorded in the Textus Roffensis (p. 223);⁶³ the former had been created after the date when, as I shall argue, the Conqueror fixed the knight service due from the fees.

In the above list the figures in brackets refer to the assessments previous to 1166. Three changes were made at, or about, that date. The Bishop of Worcester, in accordance with the protest he had made from the beginning of the reign, obtained a reduction of his quota from sixty knights to fifty; while the Archbishop of York's servitium was raised from seven knights to twenty, and that of the Bishop of Chichester from two knights to four. These changes are known to us only from the details of the prelate's scutages; there is nothing to account for them in the relevant cartae, and we can only infer from the formula quos recognoscit that the two bishops whose servitia were increased acquiesced in the justice of the crown's claim.

Proceeding to the 'service' of the religious houses:

The changes of assessment on religious houses were few, and are thus accounted for. Glastonbury, which paid on sixty knights in the first two scutages of the reign, paid on forty in the third and in those which followed. Pershore paid on three in the first scutage, protesting that it was only liable to two, and from 1168 it was only rated at two. Shaftesbury, which had paid on ten knights in the first scutage, was assessed at only seven in the third scutage and those which followed. Cerne also succeeded in getting its assessment reduced from three knights to two. With these changes should be compared the letter of Bishop Nigel of Ely to Ramsey Abbey certifying that it was only liable to an assessment of four knights. Two cases remain which require special treatment—Tavistock and Westminster.

Although Tavistock, in the first scutage, appears to have paid on the anomalous assessment of ten and a half knights its payment on fifteen in the two succeeding ones may fairly be taken as evidence that this was its servitium debitum.⁶⁵ Its abbot, however, made no reference to that servitium in his return, and—by an exception to the regular practice in the case of church fiefs—we find him charged, not on the fees, (1) 'quos recognoscit', (2) 'quos non recognoscit', but on those which were enfeoffed 'de veteri', and 'de novo' just as if he were a lay tenant. As his fees 'de veteri' were sixteen, this figure recurs in successive scutages, until in 3 John we find him contesting as to one knight ('unde est contentio') who, doubtless, represented the difference between fifteen and sixteen.

The case of Westminster presents considerable difficulty, the entries relating to its payments of scutage being very puzzling. The abbey's fees lay chiefly in Worcestershire and Gloucestershire—especially Worcestershire—and it is under this county that we find it ultimately (i.e. from 1168 onwards) assessed at fifteen fees, an assessment which the abbot himself seems to have claimed, in the first scutage, as the right one.

Taking then the servitium debitum of all the church fiefs, at their earliest ascertainable assessment, we obtain this result:

Far more difficult is the calculation of the servitium debitum from the lay fiefs. The list which follows is constructed from the evidence of the cartae and the rolls, and, though substantially correct, is liable to emendation in details. It only comprises those fiefs the servitium of which I have been able to ascertain with certainty or probability.

Graeland de Thani of Essex owed seven and a half knights (the half of fifteen), and Roger de Berkeley probably the same. Those who owed a servitium of five knights were Robert fitz Harding, Baldwin Buelot, Simon de Cancy, Nigel de Lovetot (of the honour of Tickhill), Amfry de Cancy, Hugh de Dover (of the honour of Brunne),⁹² Walter de Bolebec (Northumberland), Robert de Brus, Roger Bertram, and probably Stephen de Bulmer,⁹³ and Herbert 'de Castello'.

The cases in which the servitium can be shown not to have been a multiple of five are comparatively few. That of Simon de Beauchamp of Bedford was 54, of William Fossard 33½, of Humphrey de Bohun 30½, of William Malet 20⅙, of Robert de Beauchamp (of Somerset) 17, of William fitz John (of Harptree) 13¾, of William Blund 12, of Hugh Wac 10⅛, of William de Ros, William fitz John (of Weston) and William de Beauchamp (of Worcestershire) 7, of John de Bidun and Jocelin de Lovaine 5½.⁹⁴ But these, it will be seen, are quite insufficient to overthrow the accumulated array of evidence on the other side, and some of them are, doubtless, capable of explanation. The Bohun fief, for instance, in 1162 paid on exactly 30 fees.

It is impossible to resist the inference, from such evidence as we have, that the amount of the servitium debitum was a matter of custom and tradition, and could not usually be determined by reference to written grants or charters. On this point the returns of three Essex tenants are most instructive, while their similarity is so striking, that, as in the case of the Shropshire formulæ, it can scarcely be due to accident. The Earl of Essex closes with the words: 'et homines mei dicunt mihi quod debeo Domino Regi lx. milites'. Walter fitz Robert, who follows him, writes: 'et hoc mihi homines mei intelligere faciunt, quod debeo inde Regi servitium de l. militibus'. William de Montfichet ends thus: 'et hoc faciunt homines mei mihi intelligere—quod pater meus deserviebat per xl. milites'. With these expressions we may compare those of William fitz Alan's tenants, who assert that his Norfolk fief 'non debet domino Regi nisi i. militem ... ut antiqui testantur'; that his Shropshire fief 'non debet Regi nisi x. milites in exercitu ... sicut antiqui testantur'; and that, as to his Wiltshire fief, 'non sumus certi quod servitium debeat Regi de hoc tenemento'. The Abbot of Chertsey, also, states his servitium debitum with the proviso 'secundum quod scire possumus'. These expressions explain the uncertainty as to the servitium debitum in such cases as the See of Worcester and Ramsey Abbey.⁹⁵

The same principle applies to the relation between the tenant-in-chief and his under-tenant. Thus the very first entry in the cartae runs as follows:

Willelmus de Wokindone iiij. milites et dimidium; et praeter hoc, ex testimonio curiae meae, dimidium exigo, quem ipse se non debere defendit.

Of another tenant on the same fief we read: 'praeter hoc, ex testimonio curiae meae, adhuc j. militem exigo'. Here, we see, appeal is made not to record evidence, but to oral testimony. So, too, the Bishop of Exeter adds this clause to his return:

Et praeter hos omnes, sicut a multis audivi, comes Gloucestriæ, et comes Hugo, et comes de Clare debent tenere de Exoniensi Episcopo; sed nullum ei servitium faciunt vel recognoscunt.

Surely in all such cases as these the obvious inference is that the tenant had been enfeoffed sine carta, or in the very words of the Provisions of the Barons (1259) 'feofatus sine carta a tempore conquestus vel alio antiquo feofamento' (§ 1).

And now for my theory. No one can have even glanced at the lists I have compiled without being instantly struck by the fact that the 'service' is reckoned in round numbers, and is almost invariably a multiple of 5, if not of 10.⁹⁶ This discovery, of course, is absolutely destructive of the view that it always represented the number of five-hide (or £20) units contained in the fief. Further, the number of differing fiefs assessed at precisely the same figure proves that the assessment was wholly arbitrary and cannot have been even the round sum which approximated most nearly the number of such units.⁹⁷ What then was the true determinant in the light of these conclusions? I reply—the unit of the feudal host.

'On the continent,' writes Gneist, 'fifty milites, or at least twenty-five, were reckoned to one banneret; in England, in proportion to the smaller scale of enfeoffments, a smaller number appears to have formed the unit of the constabularia.'⁹⁸ He is right: the English constabularia, where I find it referred to, consists of ten knights.⁹⁹ It is interesting to trace this unit and its multiples recurring in the narratives of Irish warfare, under Henry II, and in other struggles.¹⁰⁰ We meet with it also in the grant by the Empress to Geoffrey de Mandeville, in 1141, of 'feodum et servicium xx. militum' and in Stephen's grant to him of 'lx milites feudatos'.¹⁰¹

The next step is to show that the Normans were familiar with servitium debitum in terms of the ten-knight unit when they landed in England. For this we have only to refer to Wace. For in the 'Roman de Rou', as quoted by Mr Freeman himself, we find William fitz Osbern assuring the duke as to his barons: