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• The Materials For English Legal History 1
• Possession For Year and Day 1
• The Introduction of English Law Into Ireland 1
• The Surnames of English Villages 1
• Northumbrian Tenures 1
• The History of the Register of Original Writs 1
• Remainders After Conditional Fees 1
• The “praerogativa Regis 1 ”
• A Conveyancer In the Thirteenth Century 1
• A New Point On Villein Tenure 1
• Frankalmoign In the Twelfth and Thirteenth Centuries 1
• Review of “the Gild Merchant 1 ”
• Henry Ii and the Criminous Clerks 1
• Tenures In Roussillon and Namur 1
• Glanvill Revised 1
• The Peace of God and the Land-peace 1
• History From the Charter Roll 1
• Taltarum's Case 1
• The Survival of Archaic Communities 1
• I.: The Malmesbury Case.
• II.: The Aston Case.
• The History of a Cambridgeshire Manor 1
• The Origin of Uses 1
• Outlines of English Legal History, 560—1600 1
• Old English Law.
• English Aw Under Norman and Angevin.
• The Growth of Jurisprudence. 1154–1273.
• Legal Reform Under Edward I.
• English Law , 1307–1600.

THE SURNAMES OF ENGLISH VILLAGES1

One of the great difficulties that has to be met if we attempt to picture to ourselves free village communities upon English soil lies in the fact that the vill or township of historic times has, as such, no court. I say “vill or township,” for we have long ago come to use these words as synonyms. Mediaeval Latin was in this respect a more precise language than that which we now use, for it distinguished between the villa and the villata, between the town and the township, between the geographical area and the body of inhabitants. I am far from saying that this distinction was always observed, still it was very generally observed: the villa is a place, the villata a body of men. If a crime takes place in the villa of Trumpington, the villata of Trumpington ought to apprehend the criminal, and may get into trouble if it fails to perform this duty. Our present use of words which fails to mark this distinction seems due to our having allowed the word town, the English equivalent for villa, to become appropriated by the larger villae, by boroughs and market towns, while no similar restriction has taken place as regards the word township. Thus Trumpington, we say, is not a town, it is a vill or township, and as nowadays few, if any, legal duties lie upon the inhabitants of a villa as such, we use the word township chiefly, if not solely, to denote a certain space of land, without even connoting a body of inhabitants with communal rights and duties. It is noticeable that in France also the word ville, which formerly was equivalent to our vill or township, has become equivalent to our town in its modern sense. I may add that, as a general rule, the modern “civil parish” may be taken to represent the vill or township of the later middle ages. The story of how it lost its old name and acquired a new one is somewhat complicated, involving the history of the poor-law. But the rough general result is that the old vill is the district now known for governmental purposes as “a civil parish.”

But this by the way. Our present point is that the vill or township of historic times, or at least of feudal times, has as such no court. Why we must insert the cautious words “as such” will be obvious. The vill may well be a manor, and the manor will have a court. We may say somewhat more than this, for though in law there is no necessary connection between manor and vill, still in fact we find a close connection. Very often manor and vill are conterminous, and, when this is not the case, the manor is often found to lie within the limits of a single vill. And the further back we go the closer seems the connection, the commoner is it to find that vill and manor coincide. The reason why the connection seems to grow closer as we go backwards is, I take it, this: that men were free to create new manors for a considerable time after it had become impossible for them to create new vills. The vill had become a governmental district not to be altered save by the central government. But, close though the connection may be, the vill and the manor are, if I may so speak, quantities of different orders. We may even be tempted for a moment to say that the vill is a unit of public law, the manor a unit of private law; the vill belongs to police law, the manor to real property law. But though there would be some truth in such sayings as these, we must reject them. The very essence of all that we call feudalism is a denial of this distinction between public and private law, an assertion that property law is the basis of all law. And turning to the matter now before us, we have only to repeat that the manor has a court, in order to show that the manor cannot be treated as merely an institute of what we should call private law.

Well, the difficulty to which I have alluded is this, that the township or vill has, as such, no court. In all the Anglo-Saxon dooms there seems no trace of the court of the township. The hundred is the lowest unit that has a tribunal; the “township moot,” if it exists, is not a tribunal. But it is very hard to conceive a “village community” worthy of the name which has no court of its own. When we look at the village communities, if such we may call them, of the feudal age, when we look at the manors, we see that the court and the jurisdiction therein exercised are the very essence of the whole arrangement. All disputes among the men of the manor about the lands of the manor can be determined within the manor. Were this not so the manor would fall to pieces, and when in course of time it ceases to be so the manor becomes insignificant—is no longer in any real sense a community. A village community that cannot do justice between its members is not much of a community; its customs, its by-laws, its mode of agriculture, it cannot enforce; to get them enforced it must appeal to a “not-itself,” to the judgment of outsiders, of jealous neighbours who will have little care for its prosperity or for the maintenance of its authority over its members. Our English evidence as to pre-feudal times seems, at least on its surface, to show that “the agricultural community,” or township, is no “juridical community,” by which I mean that it has no power jus dicendi; the hundred is the smallest “juridical community.” This is a real difficulty, and it is apparently compelling some of us to believe that the township never was a “free village community”; that from the first the force that kept it together, that gave it its communal character, was the power of a lord over serfs, a power which in course of time took the mitigated form of jurisdiction, but which had its origin in the relation between slave and slave-owner.

Now I cannot but think that some evidence about these things might yet be discovered in that most wonderful of all palimpsests, the map of England, could we but decipher it; and though I can do but very little towards the accomplishment of this end, I may be able to throw out a suggestion (not, it must be confessed, a very new one) which may set more competent inquirers at work. That suggestion, to put it very briefly, is this: that there may have been a time when township and hundred were identical, or rather—for this would be the better way of putting it—when the hundred, besides being the juridical community, was also an agricultural community. For this purpose I will refer to some evidence which seems to show that the vill of ancient times was often a much larger tract of land than the vill of modern times; that the area belonging to an agricultural community was not unfrequently as large as the area of some of our hundreds.

An English village very commonly has a double name, or, let us say, a name and a surname; it is no mere Stoke, but Stoke d’Abernon, Stoke Mandeville, Bishop's Stoke. These surnames often serve to mark some obvious contrast, as between Great and Little, in the west country between Much and Less, between Upper and Lower, Higher and Nether, Up and Down, Old and New, North and South, East and West; sometimes the character of the soil is indicated, as by Fenny and Dry; sometimes the surname is given by a river, often by the patron saint of the village church. Often, again, it tells us of the rank of the lord who held the vill; King's, Queen's, Prince's, Duke's, Earl's and Sheriff's, Bishop's, Abbot's, Prior's, Monks’, Nuns’, Friars’, Canons’, White Ladies’, Maids’, and their Latin equivalents, serve this purpose. Often, again, we have the lord's family name, d’Abitot, d’Abernon, Beauchamp, Basset, and the like; sometimes it would seem his Christian name, as in Hanley William and Coln Roger. In all this there is nothing worthy of remark, for if a place has started with a name so common as Stoke, Stow, Ham, Thorpe, Norton, Sutton, Newton, Charlton, Ashby, or the like, then sooner or later it must acquire some surname in order that it may be distinguished from the other villages of the same name with which the country abounds. It is not to our present purpose to point out that a good deal of history is sometimes involved in a very innocent-looking name; that, for example, the beck which gives its name to Weedon Beck is not in Weedon but in Normandy, still less to dwell on such curiosities as Zeal Monachorum, Ryme Intrinseca, Toller Porcorum, Shudy Camps and Shellow Bowells.

But very often we find two or more contiguous townships bearing the same name and distinguished from each other only by what we call their surnames. Cases in which there are two such townships are in some parts of England so extremely common as to be the rule rather than the exception. If, for example, we look at the map of Essex we everywhere see the words Great and Little serving to distinguish two neighbouring villages. Cases in which the same name is borne by three or more adjacent townships are rarer, but occur in many counties. Thus, in Herefordshire, Bishop's Frome, Castle Frome, Canon's Frome; in Worcestershire, Hill Crome, Earl's Crome, and Crome D’Abitot; in Gloucestershire, Coln Dean, Coln Rogers, Coln St Alwyn's; in Wiltshire, Longbridge Deverill, Hill Deverill, Brixton Deverill, Monkton Deverill, Kingston Deverill, also Winterbourne Dantsey, Winterbourne Gunner, Winterbourne Earls. Two patches of villages in the county of Dorset bear this same name of Winterbourne: in one place we find Winterbourne Whitchurch, Winterbourne Kingston, Winterbourne Clenston, Winterbourne Stickland, Winterbourne Houghton; in another, Winterbourne Abbots and Winterbourne Steepleton. In the same county is the group of Tarrant Gunville, Tarrant Hinton, Tarrant Launceston, Tarrant Monkton, Tarrant Rawstone. On the border of Berkshire and Hampshire lie Stratfield Mortimer, Stratfield Turgis, and Stratfield Saye. Essex is particularly rich in such groups; close to Layer Marney, Layer de la Hay, and Layer Bretton, are Tolleshunt Knight's, Tolleshunt Major, and Tolleshunt Darcy; in the same county are High Laver, Little Laver, and Magdalen Laver; Theydon Gernon, Theydon Mount, Theydon Bois; also (and this is perhaps the finest example) High Roding, Roding Aythorpe, Leaden Roding, White Roding, Margaret Roding, Abbots’ Roding, Roding Beauchamp, and Berners Roding. In Suffolk we find Bradfield St George, Bradfield St Clare, and Bradfield Combust; Fornham St Martin, Fornham All Saints, Fornham St Genevieve; while six neighbouring villages bear the name South Elmham, and can be distinguished from each other only by means of their patron saints.

That, taken in the bulk, these surnames are not primaeval is very obvious. There is no need to point out that many of them cannot have been bestowed by heathens, that they imply a great ecclesiastical organization, with its bishops, abbots, priors, monks, nuns, churches, steeples, crosses, and patron saints, for it is plain enough that many others are not so old as the Norman Conquest. Indeed, many of the family names which have stamped themselves on the map of England do not even take us back to the Conquest: they are the names not of the great counts and barrons who followed Duke William and shared the spoil, but of families which rose to greatness on English soil in the service of the King of England; the Bassets, for example, are men who leave their mark far and wide. Ewias Harold and Stoke Edith in Herefordshire seem to tell of very ancient days (D. B., 1. 183, 186); but such instances are rare. On the whole the inference that the map suggests is that these surnames of our villages did not become stereotyped before the end of the thirteenth century. And this is borne out by the usage of that time; one spoke then not simply of Weston Mauduit, Maisey Hampton, Eastleach Turville, but of Weston of Robert Mauduit, Hampton of Roger de Meisy, Eastleach of Robert de Tureville; a change of lord might still cause a change of name. The surnames of Prince's Risborough and Collingbourn Ducis can hardly belong even to the thirteenth century.

If now we turn to Domesday Book, not only do we see that many of these surnames are of comparatively recent date, but also we shall begin to suspect that many of our villages cannot trace their pedigrees far beyond the Norman invasion. In general, where two neighbouring modern villages have the same name, Domesday does not treat them as two. Let us look at the very striking case of the various Rodings or Roothings which lie in the Dunmow hundred of Essex. Already six lords have a manor apiece “in Rodinges”; but Domesday has no surnames for these manors: they all lie “in Rodinges.” It is so with the various Tolleshunts in the Thurstable hundred: there are many manors “in Tolleshunta.” It is so with the numerous Winterbournes, with the Tarrants, with the Deverills. Now it might be rash to argue that the governmental geography of the Confessor's day treated the whole valley of the Roding as an undivided unit, that the whole of Tolleshunt formed one township, the whole of Deverill another; there may have been many townships as well as many manors “in Rodinges,” though they had not yet acquired names, or officially recognised names. In some cases we seem to see the process of fission or subdivision actually at work. Domesday does give us a few surnames, but they are of a curious kind; by far the commonest are “Alia,” and “Altera.” Thus the two adjacent villages in Huntingdonshire which were afterwards known as Hemingford Abbot's and Hemingford Gray appear as Emingeforde and Emingeforde Alia. So we find Odeford and Odeford Alia, Pantone and Pantone Alia, and so forth. This clumsy nomenclature forcibly suggests that the two Hemingfords were already two, but had not long before been one. People are beginning to allow that Hemingford is not one village, but two villages; as yet, however, they can only indicate this fact by speaking of Hemingford and “the other Hemingford,” “Hemingford No. 2.”

Now these facts seem to suggest that in a very large number of cases the territory which was once the territory of a single township or cultivating community has, in course of time, perhaps before, perhaps after the Norman Conquest, become the territory of several different townships; or, to put it another way, that the township of the later middle ages is by no means always the representative of a primitive settlement, but is, so to speak, one of several coheirs among whom the lands of the ancestor have been partitioned. We need not, of course, believe that the phenomenon has in all cases the same cause. From the first, some of these settlements may have borne double names; a number of settlements along a winter-bourne may have borne the name of the stream, and have been distinguished from each other as the king's town on the winter-bourne, the monk's town on the winter-bourne, and so forth. This may have been so, though Domesday does not countenance any such supposition; but, at any rate, it is difficult to imagine that this is the correct explanation of any large number of instances. We can hardly believe, for example, that six different bodies of settlers sat down side by side, each calling its territory “South-Elm-Ham.” The object of giving a name to a district is to distinguish it from other districts, but more especially from such as are in close proximity to it. We can hardly believe that, on a space of ground which had only one name, there had always been two or more different communities, each with its own fields and its own customs.

We thus come to think of the township—or if that term be open to objection, I will say, the lowest nameable geographical unit—of very ancient times as being in many cases much larger than the vill or township of the later middle ages, or our own “civil parish.” In many cases we must throw three of these vills together in order to get the smallest area that had a name, and was conceived as a whole. We thus seem to make the vill approach the size of a hundred. But what is the size of a hundred? This question may well remind us of the story of the witness who referred to “the size of a piece of chalk” as to a known cubic measure. The size of the hundred as it has come down to us may vary from 2 square miles to 300. But it is well known that the large hundreds have, generally speaking, all the appearance of being more modern than the small hundreds. It is to those counties that were the first to be settled by German invaders, to Kent, and Sussex, and Wessex, that we must go for our small hundreds. The Kentish hundred is quite a small place; there are several instances in which it contains but two parishes, and therefore (for I think that this inference may be drawn as regards this part of England) but two vills: indeed, if I mistake not, there is a case in which the hundred contains but one parish, and another in which it contains but part of a single parish. There are many hundreds in the south of England which hold but six, five, four parishes.

Thus, as we look backwards, we seem to see a convergence between the size of the township and the size of the hundred, and even were the convergence between them so slight that they would not meet unless produced to a point which lies beyond the limits of history and beyond the four seas, we shall thus be put upon an inquiry which might lead to good results. It seems, for example, a possible opinion that, though if we take any of our manorial courts and trace back its history, we shall not be able to trace it further than the age of feudalism or of incipient feudalism, shall never find that court existing as a court without a lord, still there may well have been a time when the agricultural community, the community which had common fields, had also a communal court, a court constituted by free men, and a court without a lord, a court represented in later days by the court of a hundred. Into such speculations I cannot venture, but the map of England suggests them1 .

[1]The Archœological Review, Nov. 1889.

[1]Speculations of this kind are also suggested by Lamprecht's Deutsches Wirthschaftsleben, and by Kemble's theory of the “mark.” Of course I do not mean that the now existing hundreds of middle and northern England were ever agrarian communities; they may well from the first have been mere administrative and jurisdictional divisions, like our modern county court districts and petty sessional divisions, the model for such divisions having been found in the south of England, where already the hundred had lost its economic unity and become a jurisdictional division containing several townships or agrarian communities.